Universities and the First Amendment
Articles,  Blog

Universities and the First Amendment

For our last panel of the day, I pleased to
introduce Judge Thomas Hardiman of the Third Circuit Court of Appeals. Judge Hardiman received his BA from Notre
Dame and his JD from Georgetown University of Law Center. He served in private practice before being
appointed to the Western District of Pennsylvania in 2003 by President George W. Bush. In 2007, he was appointed to the Third Circuit. So, please join me in welcoming Judge Hardiman. Thank you for having me. It’s a great pleasure to be here. And thank you to the Columbia Chapter. This is the biggest lecture hall I’ve ever
been in, I think. It’s full, so it must have been a jaunting
task to organize this convention. So, congratulations on doing so, thank you. I’m confident that you’re more interested
in hearing what our esteemed panelists have to say, rather than having me prattle on about
their long list of accomplishments. So, I’ll keep the introductions brief. We’ll proceed as we usually do with a wonderfully
diverse group of speakers. Each speaker will open for 10 to 15 minutes,
then we’ll have some discussion among the panelists, which I’ll do my best to facilitate. And then I would like to reserve, hopefully,
close to a half and hour for questions. If Professor Epstein’s still in the room,
I’m sorry, your questions have been used up. So, this is the students’ symposium, not the
law professor symposium, so as much as we do love hearing from Professor Epstein, I’ll
be seeking as many of your questions as we can get in on the tail end. I’ll begin with our first speaker, Dean Robert
Post of Yale Law School. He also serves as the Sol and Lillian Goldman
Professor of Law. And I’m fortunate to know many members of
the American Law Institute. I’ve met some members of the American Philosophical
Society. And I probably met some members of the American
Academy of Arts and Sciences. But I’ve certainly not met anyone who’s a
member of all three, so that’s quite a trifecta, Dean. On a more serious note, if you consult YouTube,
you will see Dean Post surviving the ALS Ice Bucket Challenge, wearing a tie, no less. So, I hope to find out why he decided to sport
a tie for that wonderful charity. Our second speaker, Professor Philip Hamburger
is the Marice and Hilda Freeman Professor here at Columbia Law School. He’s a leading scholar of constitutional law
and its history. He works on a variety of topics including
religious liberty, freedom of speech, academic censorship, judicial review, and the office
and duty of judges. He’s written several books on very diverse
topics including church and state matters and administrative law. Also from Columbia, Professor Suzanne Goldberg
is one of the country’s foremost experts on gender and sexuality law, and a leading advocate
for the LGBTQ community. She serves as a Herbert and Doris Wechsler
Clinical Professor of Law, and she leads the law school’s Center for Gender and Sexuality
Law, and its Sexuality and Gender Law Clinic. You might be interested to know she was co-counsel
for the defendants in the landmark case of Lawrence v. Texas. Finally, our last speaker today, last but
not least, is Professor Michael McConnell. He’s a noted constitutional scholar and was
that before joining the United States Court of Appeals for the Tenth Circuit in 2002,
where he served with great distinction until returning to the academy. The judiciary’s lost is the academy’s gain. And I hope one day, to sit in Professor McConnell’s
class at Stanford that he teaches on Plato’s Republic. Without further ado, Dean Post. Thank you and thank you for the honor of being
here. It’s a great pleasure to talk to you today
about the subject of freedom of speech in the university. As you all know, it’s a highly controversial
topic, if you just look on the internet in any given day you can find Betsy DeVos saying
the greatest difficulty in the academy today is recognizing the free speech rights of others. If you look at FIRE, the Foundation for Individual
Rights and Education, you will see that the freedom that the First Amendment rights should
be protected in the university and it’s a great scandal that universities are falling
down on their obligation to protect the First Amendment rights of professors and students. Universities stand accused of intolerance
and so forth and so on. So the basic assumption behind this, and it’s
an assumption that crosses the ideological spectrum from Jeff Stone on the one side,
to FIRE on the other, is that the First Amendment type freedom of speech should apply in the
university. So, I’m gonna play Richie Epstein for a second,
and I’m going to say that that framing of the issue is wrong from the ground up. It misunderstands the way in which communications
work in a university. So, to understand why anyone would take such
a ridiculous position, I think you have to start off by saying, “Well, what do we mean
by First Amendment rights?” If First Amendment rights are going to be
applied within the university, we have to be kind of precise about what those rights
are. So, the First Amendment doctrine is quite
complex, it contains a lot of rules. Let’s just take three rules that anybody would
say would be essential to the First Amendment. First, no content discrimination. You can’t discriminate on the basis of content,
it’s subject to scrutiny if you do. Second, all ideas are equal. There’s no such thing as a false idea for
purposes of the First Amendment. Remember that rule. Third, you can’t compel someone to speak. Now, I take it there are many rules in the
First Amendment, but those three are pretty essential. You might ask yourself why we have these rules,
and here is one explanation, one which I favor. But perhaps you can think of others. It seems to me we have these rules because
when the court developed First Amendment doctrine in the 1930s, and remember, the Supreme Court
did not protect First Amendment rights until the 1930s. It protected it primarily within the context
of the ability of persons to participate in the formation of public opinion. To the end, as Chief Justice Hughes would
say, we can live in a free republic in which we govern ourselves. The value of self-governance is extremely
important in the United States. How do we cash out that value? How do we govern ourselves when I can lose
the election? And so, I’m not governing myself, I didn’t
vote for Trump. In what sense am I governing myself? Answer, we are governing ourselves because
we can all participate in the formation of public opinion. And the government is responsive to public
opinion. And hence, the First Amendment guarantees
self-governance. Now, that’s an odd thing to say, because the
First Amendment sets aside the result of majoritarian legislation. We use the First Amendment to invalidate what
the democracy otherwise would pass, but it nevertheless protects democracy because it
protects the preconditions of self-governance. So, if you think of that as a purpose of the
First Amendment, these three rules make a lot of sense. Why should we say no content discrimination? Because we don’t want the government setting
the agenda of public opinion. We want the government to be responsive to
public opinion, but not creating the agenda to which it will be responsive. It’s the people who set the agenda for government
and not the reverse. And why do we say that all ideas are equal
for purposes of the First Amendment. That’s a very strange thing to say, that all
ideas are equal. That’s not normally the way we function. But we say it for purposes of the First Amendment
because in a democracy there is political equality. All of us have an equal right to form and
to participate in the formation of public opinion. So, there’s a political equality at the heart
of the First Amendment which is embodied by this rule that, I’m not gonna second guess
your idea. Your idea matters for purposes of self-governance,
because you matter for purposes of self-government, and everyone matters equally. And the third rule, it’s a little more complicated,
no compelled speech, why is that? Because if the First Amendment is serving
the purpose I just postulated, if it’s serving the purpose of democratic legitimation, the
government can’t be responsive to me if the government is telling me what to say. If I’m to participate in the formation of
public opinion in the hope I will make the government responsive to me, if the government
is telling me what to say, then the government isn’t any longer responsive to me. Those are, I think, pretty basic explanations
of those three rules. Now, to take the university, do they apply
to the university? So, let’s take a simple example, let’s take
students like you in a classroom. Would these three rules apply to your speech
in a classroom? Is there no content discrimination in a classroom? Of course, there is. If you’re in my class on constitutional law,
you’re not talking about auto mechanics, I promise. What about all ideas are equal? No, they’re not equal, that’s called grades. What about no compelled speech? Obviously, that’s not true, you take examinations. If I call on you, you answer a question. It doesn’t apply at all to students in a classroom. What about to professors in a classroom? Same thing. If a professor is supposed to teach constitutional
law, and I wanna talk about the World Series, I have a problem with the university. All ideas being equal on teaching mathematics
and my equations are all wrong. Or I teach that there’s no Holocaust in my
history class. I’ve got a problem with the university. Or what about no compelled speech? Well, I have to teach my classes. I have to talk. These three rules have no application to professorial
speech in the classroom. They have no application to student speech
in the classroom. What protects student speech and professorial
speech in the classroom? Academic freedom of teaching. That is to say, “I have the freedom granted
to me “by academic freedom in the classroom “to teach in a way that the profession “recognize
as competent.” I have to be competent in my teaching. That’s the crucial judgment that my peers
make about my teaching. And they’re entitled to make that because
the function of a classroom is to teach. And the function of a university is to judge
whether I’ve done that competently. Now, there’s great range in freedom of teaching,
because the function, at least in higher education, this doesn’t apply to secondary education,
but in higher education, the function is to teach you to think for yourselves. To give you a critical intelligence. And that isn’t a bit of information that can
pass from me to you. That’s the difference between teaching in
a university, in a law school, and a bar review class. In a bar review class, the object is to give
you the information necessary to pass the bar. In a university, the object is to make you
want to think for yourselves and to become a mature adult. And how does that happen? Not by my giving you… a free pass to adulthood
card. It happens because you see someone enacting
a mature and dependence of mind, hopefully. That’s the idea of competence. And it inspires you to think for yourself. Most students have someone that they identify
with, a mentor, and they model themselves after that person. And because we want professors to create that
form of inspiration for their students, the idea of professional competence and freedom
of teaching, academic freedom of teaching in the classroom is quite broad ranging. It is nevertheless not exempt from judgments
of competence. And judgments of competence turn on whether
the purpose of education is being served. That’s why, as a professor, I can’t abuse
my students. I can’t yell at them and call them names,
and hostile epithets, and so forth and so on. That would be incompetent professionally because
it would be inconsistent with their learning. So, if you remember what happened to Elizabeth
Warren. Every deliberative body in the world has rules
that you can’t cast aspersions on individuals. Why? Because it’s inconsistent with deliberation. Same in the classroom. This is inconsistent with First Amendment
doctrine totally. Why is that? Because the classroom isn’t the site of self-governance. In the classroom, we aren’t governing ourselves,
we are together engaged in a mission. And the mission is education. And the speech is governed by its relationship
instrumentally to that mission. What about my speech as a professor in research? I have freedom of research. But do the three rules I just described to
you apply to my ability to publish my research? And the answer is no. So, content discrimination. If you are in, wow. If you are trying to get tenure in a linguistics
department, you’d better not touch on sports or physiology, because that’s not gonna get
you tenure. So, this content discrimination in the judgments
we make about professorial research, what about all ideas being equal? Of course not, we judge the work of untenured
professors as better or worse. And that’s upon such judgments that the award
of tenure is granted. What about no compelled speech? Well, you might have heard of the rule, publish
or perish. You don’t publish, if you don’t speak, you’re
not gonna get tenure. We apply these criteria of competence to professors
in their research role. And we do not apply the basic rules that define
freedom of speech. And why is that? Once again, because we hire professors to
do a job. The job is research, and we want them to achieve
that goal, and we have to regulate their speech in order to attain that goal. And that’s not an issue of self-governance. That’s not an issue of freedom of speech. And in point of fact, we protect the freedom
of research through academic freedom of research. Academic freedom is quite different than freedom
of speech. Because academic freedom protects, it’s subject
to judgments of competence. Every university has to judge the competence
of its faculty. It does all the time. Freedom of speech precludes judgments of competence
through the three rules that I just described to you. Moreover, freedom of speech, First Amendment
freedom of speech is an individual right. It’s my right, as a person, to say what I
want to say. Academic freedom of teaching is not the academic
freedom of the individual, it’s the academic freedom of the scholarly profession to make
its own judgements free from the pressures of the administration, or the donors, or whoever
happens to own the university. So, what’s actually protected in academic
freedom of research are the disciplinary rules by which the departments are constituted. So, simple example, I’m a professor, I wanna
get tenure. I’ve published a piece of work. They don’t tenure me, it’s an outrage. I go to court and I sue. What is the court going to do? So, the court looks at the case, and if the
court thinks this work actually deserved tenure, disciplinary standards were not correctly
applied, because say, there was outside pressure, or because they was biased. The court will find for the professor, putting
aside issues of deference. And if the court finds that disciplinary standards
were properly applied, that is to say, this work really isn’t that good, it will find
for the university. So, academic freedom doesn’t reside in the
university. It doesn’t reside in the individual professor. It resides in the disciplinary standards. The court is protecting the disciplinary standards
that define competence in the field. Now, I understand the confusion that might
occur because we are so often say to ourselves, “Gee, we protect freedom of speech, the First
Amendment “because of the marketplace of ideas, “and the marketplace of ideas leads to knowledge.” People often cite Holmes, the best test of
truth is its power to get itself accepted in the marketplace of ideas. But if you think about it for two seconds,
that doesn’t make any sense at all. There is no knowledge producing sector of
this society that goes off on a marketplace of ideas theory. No law review does a marketplace of ideas
theory. You don’t accept articles on a first come,
first served basis. No professional journal, if you’re running
“Lancet”, or “Nature”, or “Science”, you make judgments of quality. And if you think about it for another second,
you’ll see that the premise that there’s no such thing as a false idea would also mean
there’s no such thing as a true idea. And the whole enterprise of getting to knowledge
would collapse. So, wherever you see knowledge created in
our society, you will see judgments of competence in a disciplinary context, and that means
a hierarchical context, in which there are authorities and not authorities. This is a complicated set of sociological
conditions that define a discipline. It must be open to criticism. The price of being part of a disciplinary
community is being perpetually open to criticism. But at the same time, a discipline has to
decide what’s real and what isn’t, what’s true and what isn’t. So, it has this motion, it has this difficult
balance to maintain. So, freedom of speech is really not a very
helpful concept when it comes to understanding how students’ or professors’ speech is regulated
in a university. We see this mostly coming up in situations
where academic freedom is not truly relevant, like in invited speakers. And then we have to ask why does a university
invite speakers? It doesn’t invite speakers because it wants
to be like a park, it’s wants to be a public forum. It invites speakers to serve its basic missions
of research or education. And if that’s true, then the issue of the
freedom of speech, or the selection of the speakers has to be judged by the same standards. I take it one important mission of a university
is to train students to be tolerant of the views of others. To understand themselves as citizens in a
pluralistic world where a lot of people are gonna disagree with them. So, most major universities, most major research
universities allow for a kind of quasi-public forum in the invitation of speakers. But they do so for educational reasons. And it follows from that fact that in any
given case, the educational reasons may be so strong as to require the conclusion that
this speaker is so disruptive as to be inimical to the university atmosphere and university
mission. And once again, that’s a judgment about education,
not about freedom of speech. Why don’t I begin by saying a little bit about
the topic, because we may see the topic slightly differently. Robert has treated the subjects of disciplines,
and indeed discipline within the university. And there’s a lot to be said for understanding
what we do within fairly constrained circumstances. But in contrast, I’d like to talk about freedom. And in particular, free speech. At stake is not a narrow concept of academic
freedom, but more broadly, and what sometimes is missing even in academic context, intellectual
inquiry. It’s sometimes said that we’re here to teach. Maybe, I’d rather think it’s a more egalitarian
enterprise. Both students and faculty are in these institutions
in order to inquire, to engage in intellectual inquiry, not really academic inquiry. And what we need for this above all is freedom. Of course, there are disciplinary limits to
this. One can easily go off topic. But then ridicule is the easiest solution
to this. To inquire seriously, one’s always having
to upturn old accepted truths. And one sometimes steps on toes in the process. So, freedom is necessary for this inquiry
to flourish. And this is profoundly at risk. Universities are embracing conformity in all
sorts of ways, not just the ways discussed in this panel. And at the same time, electronic communications
opening up inquiries outside these institutions. And the danger is that universities are going
to return to what they once were, very expensive finishing schools. And by the way, given the behavior of both
faculty and students alike, I’m not sure we’re very good at being finishing schools. So, second, what’s the nature of the danger? Put generally, the real danger is not any
one thing but an alignment of forces. There’s not just one pressure for conformity,
but many. There’s peer pressure, accelerated by that
same electronic media, and popular opinion, especially in a democratic society. There are financial pressures, of which the
university is always painfully aware. Not to mention students increasingly. And then ultimately, there are legal pressures. And that is I think the most important focus
here at a law school. And in that sense, I guess I’m going to be
talking about intersectionality. Because it seems to me whatever one thinks
about the distinct character of academic freedom, or intellectual inquiry, the freedom necessary
within the university, and that’s a complex matter, does intersect with one’s legal freedom,
and sometimes in painful ways. So, you might think at this point, I’m gonna
talk about insults on campus and political correctness. I’m not gonna do that. I want to go off in an entirely different
direction that may seem actually out of place. I’m gonna talk about an institution many of
you will never have heard of, and yet it exists right here. This institution is the institutional review
board. I’m just curious, how many of you have even
heard of an institutional review board? Oh my, well, that’s more than I get at most
events. Because we actually have formalized censorship
of 17th century style in every university in this country. And it’s worth remembering this because amidst
all of the complaints about political correctness, which are very serious, at the same time,
we have to worry also about institutionalized censorship. This is real censorship, it’s prior administrative
licensing that requires one to get permission before one talks, writes, and publishes. The First Amendment says, “Congress shall
make no law “abridging the freedom of speech or of the press.” Now, the meaning of this is disputed. Does it cover injunctions, post publication
of restraints, to what degree, nonverbal expression? All that’s very interesting. But there’s no dispute about the core historical
meaning, which is no prior administrative licensing. This is a rejection of the Star Chamber and
of the Inquisition which did this. There’s an absolute bar against licensing
of words. But such licensing has come back in a form
of institutional review boards, so-called IRBs. Now, the goal was to avoid harm in human subjects
research. And the moment you mention that, all sorts
of images come to mind. You know, sticking needles into people, injecting
mercury, seeing what happens. It’s just like the concentration camps. Well, not really, but the point is that from
this fear, the government, particularly HHS, developed a system of licensing. And whereas the old licensing of the 17th
century was designed to protect the dignity of God, this is designed to protect the dignity
of human beings. The federal government conditions benefits
for universities on their establishing IRBs and their licensing. I should say just as a caveat, I’m not talking
about the use of IRBs under FDA regulations for new drugs and devices, in case you’re
aware of such things. That’s not the topic here. There’s another use of IRBs for controlling
speech in universities. HHS sets the minimum standard for this in
something called the Common Rule, but institutions developed their own additional rules. The universities uniformly cooperate. Why? Well, one reason is its condition of benefits. But it’s more than that. Very early on, already in the ’70s, the federal
government realized it was in a somewhat awkward position imposing this. So, in ways I won’t bore you with, it encouraged
the idea that state negligence law enforced these, and that’s the main fear now at universities. And some states actually have their own statutes
on the subject. So, there’s direct state action from the states
these days. Universities established IRBs, and if I, or
anyone else here, wants to talk to somebody about them, read about them, even look at
public records that refer to living human beings, one generally has to get prior permission
in order to publish on it. The mechanics of this we can leave aside. Suffice to say, that if you do not cooperate,
you will be told to stop your research, stop even thinking about the subject, stop taking
notes, stop reading. You’ll be told not to publish. If you have a publication lined up, you’ll
be told to withdraw. The journal will be corralled into withdrawing
publication. And if you really persist, you’ll be denied
permission for any future research publication. And you can even be declared unfit to do research,
which means you can never publish academically again. This is 17th century licensing all back again. Now, does it really concern speech? Oh, indeed it does. The regulations define research in terms of
speech. I won’t parse regulations for you, that would
be a bit of a bore. But suffice to say, speech is what it’s all
about, and that’s most of what the IRBs do. They control what’s said. Even when we get to medical research, it’s
their main concern. Where does this lead? It leads, to my mind, to a fourth point, an
interesting question about universities. Are they federal agents? A federal agent, we assume comes with a badge,
and a nice suit, and he arrests you, or does nasty things. But are universities federal agents? Are they agents for carrying out the federal
suppression of speech? The fiction is, of course, that no one is
suppressing speech. Why is that? The government says, “We’re not suppressing
speech. “Goodness gracious, no. “We’re just distributing benefits, “and of
course, the conditions on these. “But the universities do what they need to
do. “That’s not our business.” And the universities say, “Oh no, no, no. “We’re not suppressing speech. “We’re just living up to the conditions of
our grants. “We have to do this.” Everyone’s going like this. And the result is, no one actually is suppressing
speech, and yet we have the most elaborate suppression since the 17th century. This is extraordinary. Now, if one steps back a little bit from this
and looks at the administrative state, it’s quite clear that administrative agencies at
the federal level, treat every single other institution as an administrative agent. States are now administrative agents of the
federal government. State schools are, private businesses are,
and private universities, and in many instances for regulating speech. So the reality is universities may, in fact,
be agents for the federal government. By the way, the federal government’s very
well aware of this. I interviewed about 20 or so HHS officials
including the folks that drafted the regulations. And they’re self-conscious, they say, “Look,
we’re not requiring any suppression of speech. “This is no contract between the university
“and the federal government. “Oh no, no, no, no, we just give benefits
“and the university gives us an assurance. “And that’s not a contract. “You should never think it’s a contract, “because
then, of course, universities “would be federal agents.” But where someone acts in behalf of somebody
else, and indeed for money, it’s difficult to think that they’re not agents in some sense. Here in this case, to carry out policies that
suppress speech. These are policies that the federal government
knows, in great details knows, that would be utterly unconstitutional if carried out
directly by HHS. And that’s precisely why they farm it out
to other people. Now, if I were in another business, and I
wanted to carry out a hit, but I didn’t wanna get my hands dirty, and I paid one of you
to do it, do you think either of us would escape the fury of the law? I doubt it. And this gets to a fifth point, my conclusion,
which are federal remedies. If we have federal suppression of speech through
federal agents, the universities, what should the solutions be? Now, one obvious one would be condition federal
funds for educational institutions on their not abridging freedom of speech. That’s easy enough. But this is complicated for reasons that Robert
mentioned. It’s very worrisome, moreover, to have the
federal government intruding more into private institutions to cure the prior intrusion. One could, of course, simply reduce federal
funding without any conditions on it. Just bring it down a notch, just as a gentle
shot across the bow, and that may be good for other purposes, ’cause universities are
too dependent on federal funds. But that seems rather harsh. And if it is to be done, it should be done
for other reasons. Of course, we could have a new federal statute,
so being like section 1981. It would read something like this. Any person, individual otherwise who abridges
or authorizes the abridgment of freedom of speech, or the press, guaranteed by the Constitution,
under color of state or federal law, or under the color of any state or federal condition,
contract assurance, et cetera, should be liable in a state court or federal, et cetera, for
damages. That would be nice. But again, that may be too broad. I think it’s an open question as to whether
that would be desirable. And I’m always hesitant to see more federal
regulation of this sort. So, I just want to leave with the suggestion
that the solution is actually up to everyone in this room. One solution is to talk about the problem
and make people more aware of it. Another solution to which we are all, I think,
very well equipped, is litigation. And I’ll just close by saying I think they’ll
be a lot of very amusing litigation on this subject in the coming years. And the universities will rue the day that
they became federal agents for suppressing speech. Thank you. I’m delighted to be here. I wanna thank the organizers, including some
of my former students for putting this together. It’s really, it’s a pleasure, and a pleasure
to be speaking with my fellow panelists. So, you may or may not know that in the early
1990s, there was a great debate in the law review literature about hate speech and hate
speech on campuses, in particular. And that if you look at some of those articles
now, including some written by people in this room, you will think that they could have
been written yesterday. Because the issues around race discrimination,
around racism, around sexism, around anti-gay antagonism, around many other issues, have
been with us at universities for a very long time. And the questions of how we engage around
them as institutions, as faculties, as students, as members of university communities, I predict
will remain quite pressing for us now, and even if we were all together here again in
20 or 30 years. So, my goal today is not to revisit that literature
of that early 1990s, but instead, to step back from the free speech versus censorship
framing that is so often what people debate on these issues. And to ask you to think, and I should say,
because free speech is an administrable rule. It’s fairly easy to say, “We’ll let anybody
speak. “And we will enforce that person’s right to
speak. “We will allow for and find ways “to protect
a person’s ability to share their views.” That’s not such a hard question in certain
respects. The questions I want you to think about today,
or that I invite you to think about are what are the costs, what are the consequences,
and how else might we want to think about the cost and consequences of free speech within
universities beyond just resorting to we need to allow it, and that’s the end of the discussion? So, what I’ll do is speak first about our
rules of university conduct here at Columbia. And then second, I’ll explore three sets of
costs or consequences that I think of as relevant to this issue. And third, I’m going to post more questions
for you about this. So, this is definitely in the vein of more
questions than answers. And that’s really my goal and I think, most
appropriate with most of you being students, is to lodge with you some very important questions
for your consideration going forward. Now, at Columbia, I serve, in addition to
all of my law faculty roles, on the senior administration of the university. And one of the responsibilities I have is
to administer our rules of university conduct, which govern demonstrations and counter demonstrations
on campus. I am speaking in my personal capacity only
here, not in an institutional capacity. But what I want to share with you is informed
by my experiences of administering our rules. Now, given time constraints, I’m going to
focus in these remarks on thinking about these issues around invited speakers who are not
affiliated with the university. There are, as Dean Post said, many issues
around faculty speech, many issues around student speech, both in and outside the classroom. Hopefully, we’ll talk more about those in
the Q&A. As a preliminary matter, I just wanna remind
you of what you already know, which is that outside speakers get invited to campus in
many different ways. Many of you presumably have invited speakers
to campus. Sometimes faculty members do in their individual
capacity or running a center or an institute. Sometimes the schools themselves do or the
broader university. So, at Columbia, like at many schools, we
have a policy around these kinds of issues. We happen to have a 17 plus page policy, single
spaced, that reviews not only our values, but also the various procedures and so forth
associated with this. What I want to share with you is something
from the affirmative statement in our rules. Because I think it’s quite important for situating
the conversation about how do we think then about free speech and its costs and consequences. So, our rules say that they’re intended to
insure that all members of our community may engage in our cherished traditions of free
expression and open debate. That the university provides a place for ideas
to be tested, for values to be questioned, and for minds to be changed with as few constraints
as possible. Now, it has an interesting connection to the
point that Professor Hamburger was just raising about IRBs, but I will set those aside for
a moment. The rules stress the rights of demonstrators
and of counter demonstrators. And they explain that the limited restrictions
that are imposed on disrupting university events and functions are justified, not because
they would prevent an opinion from being heard or stated, but to the contrary because they
protect rights of free speech, free press, and academic freedom. The rules are specifically and extensively
content neutral. To be true to these principles, the rules
say the university cannot and will not rule any subject or form of expression out of order
on the ground that it is objectionable, offensive, immoral, or untrue. The rules go on, viewpoints will inevitably
conflict and members of the university community will disagree with, and may even take offense,
at both the opinions expressed by others and the manner in which they are expressed. But the role of the university is not to shield
individuals from positions that they find unwelcome, rather the university is a place
for received wisdom and friendly held views to be tested, and tested again, so that members
of the university community can listen, challenge each other, and be challenged in return. And I’m sure Dean Post and I can exchange
about this afterwards. But for purposes here, as a matter of rule
of law, the rule at our university here is clear. If a speaker is invited, that speaker is entitled
to speak and has protection against being disrupted even by people who most profoundly
disagree with this speaker’s views. So, the interesting question to me in this
context is not, do we vet speakers for their views, but instead, are the costs and consequences
of having a policy like this in place? And my chief point is this as I said at the
outset, that much of the public debate, is it free speech or censorship, obscures some
of the more important questions that arise when we think about bringing speakers to a
university campus, whose views may be seen by many as hostile toward what higher educational
institutions identify as fundamental values. So, this is quite related to what Dean Post
was saying. In addition to the exchange of ideas, values
we hold dear are fostering education, advancing research and knowledge more generally. So, let me suggest for you three costs and
consequences that I would like you to think about as you think about these issues. First, there’s the potential cost or consequence
that somebody’s presence on a college campus legitimates to the outside world their speech,
that in some way contradicts the educational mission. So, elevates pseudo-science, elevates demonstrably
flawed or debunked methodologies, elevates accounts of history that have been falsified,
or other facts that have been falsified. That is, I think we can trust on a university
campus that these ideas will be debated, that the issues will be exposed, that students
on campus, in particular, will have an opportunity to see that there’s a range of views. But that debate rarely carries over outside
of the university setting. And instead, what we most often see, I think,
is that many speakers will tout their presence and their speech at a university as a basis
for granting them legitimacy. I spoke at X, Y, and Z Universities, now I’m
speaking to you. And the you audience, whether it’s a radio
show, or a TV show, or a community group setting, won’t have had the benefit of the rigorous
debate and conversation that will have taken place most likely on the university campus. One could say in a sense that universities
and colleges are being used by speakers to elevate their legitimacy to the broader public. Second potential cost or consequence, that
the speaker generates or exacerbates a hostile environment for students whose identity, intelligence,
or activities are devalued by the speaker, often with a hostile tone or a language that
its targets argue have the effect of putting them at risk. This is the more familiar ground for the debate. There’s lots of examples here. I’m not going to elevate anyone in particular,
I’m sure you all have your favorites in mind. I do want to be clear that in my university
role, I hear this concern not only from the liberal and progressive students that the
media tends to focus on in these issues, but also and extensively, from conservative students
who feel threatened or shut down by having speakers condemning their views, as well. And so, this presents, I think, a serious
question for educational institutions. So, I recently saw a tee-shirt that said,
“If you’re afraid to offend, you can’t be honest.” And I imagined also the counter part tee-shirt
putting together some other conversations I’ve had that says, “If you offend me, I find
it difficult to learn from you.” Now, on the one hand, we are at universities
all about the exchange of ideas. On the other, we know empirically and anecdotally
that students who experience their environment as hostile, on whatever grounds, are less
likely to gain full benefits of their education. And I think each of us, and I’d ask you to
think about this as I’m talking, we’ve all sat and listened to speakers where we have
had the experience of seeing another person in the audience who’s very agitated with the
speaker, and that person’s ideas. Very passionate about it, very offended by
the ideas. And we’ve sat there somewhat curious. I’m not that offended actually, or I don’t
know why you have so much passion about this. At the same time, I suspect we’ve all had
the experience of feeling quite impassioned in reaction to a speaker. And having those around us be puzzled at our
own behavior. Now, when these ideas are about identity,
and these sort of experienced attacks are about identity, whether mocking feminists,
or transgender students, or skeptical about the Holocaust, or skeptical about racism,
or skeptical about any number of other things, religious minorities certainly a strong an
issue today. Or suggesting, for example, that conservatists
are killing the environment or other people. I think it would be naive to think this has
no impact on students and on the student learning experience. Now, it does not follow automatically from
recognizing this that the answer is to disallow the speaker. But to me, that is not the end of the conversation,
that’s the start of the conversation. And it is exactly what compels us to ask,
then what might our obligations be? The third, just briefly, is that a speaker,
the third cost or potential consequence that I sometimes hear, I imagine you have. Is that a speaker’s ideas are dangerous in
a particular respect to a population, to an environment, and that we are in an exceptional
situation such that that speaker, setting aside even concerns about legitimating the
idea outside of the university setting, setting aside the harm maybe to somebody’s education,
but that that speaker is advancing ideas that endanger our world. So, how do we think about this and should
we think about this in a way outside of conversation over cocktails. I wanna ask you that question and suggest
that, yes, I actually think that we each ought to think very seriously about our responsibilities
in these regards. Not only as individual students, or faculty
members, or administrators, or at the institutional level, but also as we think about our role
in shaping and fostering higher education. So, just briefly, I’ll remind you, especially
on the second point, the targeted attacks on populations, the Title VI and Title IX
both prohibit discrimination in educational institutions based on race, color, national
origin, and sex. It’s well settled that this commitment includes
nondiscrimination for students in getting the benefits of their education. Multiple courts have recognized that misconduct
of various sorts that creates a hostile environment can be understood to deprive a student of
the benefits of their education in ways that create a violation of these laws. Now, having a speaker speak is not the same
as misconduct of the sort of a physical assault, of course, but it remains the case as we know
from a range of empirical literature that there are costs, again, to speech. That the idea of sticks and stones won’t break
my bones, will break my bones but names will never hurt me. That that is fairly well debunked in the empirical
literature. And so, the question again for us is, what
do we do? Going back to the law review articles of the
early 1990s, there was a lot of sense of this is very hurtful speech, it’s problematic speech,
but there wasn’t as well a developed a body of empirical literature demonstrating the
consequences for students’ educational experiences. We now have more of that, surely there will
be more to come. And so, again, in the vein of leaving you
with more questions than answers, I’d like you to consider what then if we are not going
to stop the speech, and I’m not contending we should, I actually don’t think we should. But if we are not going to stop this speech,
what are our obligations and how might we think about responding? If I were speaking to a similar group of
the American Constitution Society as I like to do, I would spend more of my precious time
documenting the sad state of freedom of thought on American campuses. But I’m guessing in this crowd, I don’t need
to do that because you’re all painfully aware. I do want to mention though, a recent statement
just about two weeks ago, John Etchemendy, the long time Provost at Stanford University
where I teach, and one of the most respected figures in higher education, took the occasion
of his stepping down to make what I think is a very important statement. And I would recommend that all of you look
for it. It was entitled “The Danger Within”. And he begins by talking about various threats
to higher education, funding cuts, and this and that. And that’s all sort of familiar stuff. And then he says, “But I’m actually more worried
“about the threat from within. “Over the years, I have watched a growing
intolerance “at universities in this country. “Not intolerance along racial, or ethnic,
or gender lines, “there we have made laudable progress. “Rather a kind of intellectual intolerance,
“a political one-sidedness that is the antithesis “of what universities should stand for. “It manifests itself in many ways. “And the intellectual monocultures “that have
taken over certain disciplines, “and the demands to disinvite speakers “and outlaw groups whose
views we find offensive. “And constant calls for the university itself
“to take political stands.” It goes on to say that this results in a kind
of intellectual blindness that will in the long run be more damaging to universities
than cuts in federal funding, or any of the other things we’ve been talking about at the
beginning. It will be more damaging because we won’t
even see it. We will write off those with opposing views
as evil, or ignorant, or stupid, rather than as interlocutories worthy of consideration. We succumb to the all purpose ad hominem because
it is easier and more comforting than rational argument. But when we do, we abandon what is great about
this university, institution that we serve. So, maybe even in mainstream academia, folks
are beginning to notice the problem that I suspect most of the people in this room have
noticed. I mostly wanna talk about what we can do about
this. Before I do that, I do want to just say two
things as a preliminary. One is, you are not the victims, and I don’t
have a lot of patience with whining. Yet, yes, it is unfair. Yes, it can be painful. But you’ve been through the refiner’s fire. You don’t go a day in your education without
being challenged about the nature of your assumptions, why do you believe what you believe? And you don’t go a day in your education with
having to figure out how to communicate with people who don’t necessarily share your presuppositions. You are getting the finest education that
young lawyers can get. The victims of this one-sidedness are your
liberal and progressive fellow students, who can go through an entire education without
ever having their precious beliefs challenged. And without needing to learn how to make a
real argument. To make instead, arguments of the form of
check your privilege. Which I think is left-wing ideology speak
for shut the hell up. And there is one other set of victims in that
society as a whole. Because universities, and especially laws
schools, are raising the leadership class of our country. And I fear that we are raising a generation
of people who either do not understand or do not believe that there are two, and oftentimes
more than two legitimate points of view. And who believe that disagreement is something
that can be suppressed. I think that this is a major reason for the
much lamented extreme polarization that we are already seeing in our political culture. Because it doesn’t take very many classes
of university students who have no sympathy, or understanding, or empathy for the other
side to produce this kind of an effect. So now, to what I really wanna talk about,
which is what can be done? And specifically, what I’m asking here, or
going to talk about, is what can you do, assuming that you care? What can you do? And what can you reasonably go to your universities’
and your law schools’ deans and ask to be done? And in order to know what to do, you need
to divide the problem up. Because I think there’s basically three quite
different sets of problems. One has to do with university policies. One has to do with other students. And the third, sort of all pervasively problem,
is the one-party state. Now, as to university policies, this I think
it’s gonna be extremely difficult but it’s the most straightforward of the three areas. The first thing that I think you can reasonably
ask for, and you should be asking for, is that the university be clear what its policies
are about speech and diversity of expression on campus. Here the University of Chicago led by my former
teacher, Jeff Stone, is I think, the model. Not every university is going to be willing
to be as clear and forthright as the University of, here’s the Chicago statement, the key
sentence. The university is committed to the principle
that it may not restrict debate or deliberation because the ideas put forth are thought to
be offensive, unwise, immoral, or wrong headed. It is for the members of the university community
to make those judgments for themselves. Are there exceptions? Yes. Narrow-defined circumstances, for example,
speech that violates the law if threatening, harassing, or defamatory, or invades substantial
privacy or confidentiality interests. Essentially the same restrictions that freedom
of speech has out in the rest of the world. But even if your university is not willing
to go the full Chicago. You’re entitled to know what the policy is. And if the policy is not very free speech
friendly, you’re entitled to know that and so is the public. Asking for a clear statement of policy, I
think is important. But in addition to university policies, which
are very important, I also think you’re entitled to ask for a university leadership with respect
to helping to set a tone for our free-spirited discussion on campus. Here again… John Etchemendy says… in this, he says,
“The first step, the first step,” he says, “is to remind our students and colleagues
“that those who hold views contrary to one’s own “are rarely evil or stupid, “and may know
or understand things that we do not know.” It takes so little. Right after the Trump election, things at
Stanford Law School were, I think, maybe a little better than I hear from elsewhere. But you know, we had a cry-in, and it was
really pretty bad. And the university administration issued a
statement. It’s kind of a funny statement, but it was
really quite helpful. The statement came from the Career and Pro
Bono office, and it said that we know that some students in the law school will be seeking
positions in the new administration, and we have resources and contacts to make available
to them. Now, I think that was a lie. I don’t think they have any contacts at all. I would be the closest one and I didn’t have
any contacts. Not being exactly Mr. Trump Central. But the message that this sent out is it was
telling the other students, remember, that among us are supporters of this administration. Part of our community is not thinking that
this is, as one of my colleagues said, “The worse thing to happen since 9-11.” And I think just to be aware of other people,
and that they exist, and that they are human beings, too. I think that that can be helpful. The next thing that I would ask our universities
to do is, and I’m taking a leaf here from the sexual assault program, is there ought
to be an environmental survey. This has been required with respect to sexual
assault to determine just how prevalent the problem is. And I think a survey of the students, and
maybe faculty, too, about whether they have felt free to express their views in class,
and out of class, whether they’ve ever felt physically threatened, or threatened in some
other way when they do that. I think that would be very valuable information. Until we find out the extent of the problem,
it’s always going to be possible for the Pollyannas, the ideologically motivated Pollyannas to
deny that we have a problem at all. And then I also would suggest that universities
establish some kind of an office like an ombudsman somewhere where students, maybe faculty and
administrators, too, but especially students can go when they have a situation in which
their free speech rights. Pardon me, maybe they’re not free speech rights,
whatever they are rights on campus have been violated, for if they believe they’ve been
graded down because they disagreed with the professor. If they have had their, as many conservative
student newspapers are stolen en masse, in order to make sure they don’t get. If their, as I believe happened at Harvard
Law School, although people here could correct me, as notices were ripped down from from
what supposedly were public notice boards. Things of that sort. If there were a place where people were entitled
to go, and I don’t even know what redress they should get, but I think just knowing
that the university cares enough to give them a place to go with their legitimate complaints
would be very helpful. Now, how do you get this done? The first thing is you should be requesting
meetings with, I don’t know if you can get through to the university president, but you
can surely get through to the law school dean and the other folks. You should go not by yourself, I think, no
more than three. But you should go in a group of three if you
can. You should be respectful. You should be constructive. You should be well-informed. You should not complain about things unless
you really know what happened and have thought about it. And in addition to the meetings, you should
write, you should take advantage of university publications to publicize problems, and to
write and to talk about what the university ought to do. You should petition. You should offer to debate. This is a really good thing to do if we’re
right about this. People should be willing to debate it. You should put on symposiums and panels. So, here’s a concrete suggestion. Ask the American Constitution Society at your
school to put on a program about this subject with a balanced panel. And if they’re reluctant, and maybe they will
be, I don’t know, offer to let them put, offer for the Federal Society at your school to
put a panel on a subject that they think we ought to be thinking about more seriously. I think that’s a great idea. Another thing, establish committees of correspondence
with other FedSoc chapters around the country, so that you know what other people are doing,
so you can find out, you can swap best practices, you can say what works, what doesn’t work. We’ve got this great idea, don’t do this. Committees of correspondence would be helpful. Now, as to other students, this is the trickiest
because other students have just as much right to criticize you and me as we do to criticize
them. If the idea of microaggressions is an offense
against freedom of speech, let us not do whatever the converse is, macroaggressions, whatever
it would be. but… violence and threats of violence, and
trashing of property, and interference with notices, and interference with meetings, these
things are not mere criticism. And I think we are entitled to ask for protection
from the universities. What happened at Berkeley was an utter shock. But then just yesterday, I believe it was,
at Middlebury, there was a similar violent incident. I have not heard of arrests and retributions
on this. I very frequently hear of things like this,
the theft of newspapers, where there’s evidence of who did it, and universities doing nothing. This is something can reasonably be asked. But also part of the University of Chicago
statement that I read before says, “The University has a solemn responsibility, “not only to
promote a lively and fearless freedom “of debate and deliberation, but also to protect
“that freedom when others attempt to restrict it.” University has an obligation to protect. At Berkeley, they knew what was coming, and
they did not protect. They had very few guards, and the guards did
almost nothing about it. That was a dereliction of University of California’s
responsibility to the students under freedom of speech at that institution. Now, I think I’m out of time, so we can’t
even talk about the one-party state. Catch me at cocktails after dinner. Actually, after two cocktails after dinner. And we can talk about that. Okay, comments from the panel on remarks from
colleagues. So, this was very interesting. I quite agree with Mike about the one-party
state. It’s depressing. I thought that was over there in Eastern Europe,
but perhaps not. I guess my only real comment is about what
I call an equality of insult. I think the notion of insult’s actually very
important in all of this. I worry about the illusion that we have really
content neutrality on campus, or that universities take insults seriously. Whether or not they should be, the reality
is different as we all know. And the reality, by the way, goes back to
my youth, which means we’re talking at least a half-century here. Right? Sad to say. So, think about the uses of insult. Insult is treated by the university as a mode
of demeaning somebody else, whether intentionally or just negligently. And that’s very hurtful to them, it’s said. Or whether people who feel hurt by words should
be engaged in academic inquiry’s another matter. The awkwardness is it serves another purpose
as we all know. It’s a marker, it demarcates the boundaries
of legitimate inquiry and speech. And so, if an insult is accepted without repudiation,
then it becomes a line beyond which one does not go without at least peer pressure. And that leads one to think, is there really
equality in this matter? And of course, the answer is no. My first week of teaching, the dean at my
school, state school, my JU, said, “Oh, you’re gonna be our resident fascist, I see.” And I knew from that moment onwards, it wasn’t
going to be the intellectual experience I expected. And this is pervasive, right? Let me just take two, I don’t wanna whine,
but I do wanna take two phrases, and I must say I was brought up to be a gentleman. I would never want to insult anybody. It seems to me antithetical, not really academic
inquiry, but to who I am. Nonetheless, let me take two phrases that
I think are more or less parallel. One we hear quite commonly, I’ve heard many
times in my life in academia, chauvinist pig. No one want to be called a chauvinist pig,
even if they are a chauvinist pig. And what’s the equivalent on the other side? Feminist bitch? I mean, it’s not even a phrase I want to use. But degrading somebody as an animal on account
of their enthusiasm from one sexual perspective or another. We all know which phrase is used. We all know what happened to teacher or a
faculty if they use the one phrase rather than the other. And when one understands just how prejudiced
the application of university generalities can be, one begins to realize that what we
have here is a serious problem. And when it comes with federal funding, and
it’s common to state schools, and I started at a state school, there are First Amendment
issues here. Great. I wanna speak to the university’s obligation
as an educational institution, because Judge McConnell and I probably disagree on many,
I know we disagree on many substantive issues. I do want to strongly disagree with much of
what you said about engaging in the university community, participating. And in particular, I want to highlight a through
line to what you were just saying, which is that universities are educational institutions. You come in, we’ve all come in as students,
not knowing everything, right? Certainly as faculty, we don’t know everything. But one of the things that’s critically important,
I think, to learn as student, both in the undergraduate and then in the graduate school
setting, is what do you think? For undergraduates, identity formation is
particularly important, and critical, and psychologically, we know that sort of the
17 or 18 to 23-year-old stage is very important developmentally. And it goes beyond that. It goes throughout our whole lives. So, that the obligation of the institutions
is not just to say you’ve done something wrong by tearing down the other group’s flyers,
which has been happening at universities for time immemorial on many, many different issues,
some politically motivated, others not so much. Or taking each other’s publications. But to really help people in that process,
not only sort of engage in a disciplinary function, but really understand why it is
so important to understand what others think. As Judge McConnell said, “People who we disagree
with “rarely have nothing to their argument.” Now, I assume everybody here knows that as
law students or lawyers because we can’t be effective advocates if we don’t deeply try
to understand the arguments against our position. That’s been essential to me in all of the
LGBT rights and the other gender and sexuality work that I’ve done over time. I think it’s essential for anyone, anywhere. So, the question again I encourage you to
think about is, how do we make that real? How do each of us, regardless of our political
views, make real this learning process of understanding the positions of others, and
responding to them, engaging with them, perhaps reflecting on them as we develop our own arguments? Because again, the argument’s never over,
right? It’s never over after you win a case. It’s never over after you close a deal. We live in a dynamic world, these issues are
dynamic. I think, though, the last. I don’t really wanna engage in particular
disagreement, but I do feel it’s important to just note two points. One, in terms of Berkeley, my, at least, read
on this is that there was actually not an expectation that outsiders would come in and
agitate. And so, I think we can disagree about what
the facts were, but I just wanna voice that. That has certainly been part of the coverage
there. The second, with respect to my beloved colleague,
Phillip Hamburger, who I think we’ve been friends from day one. On the balance between sort of sexist insults,
I take a different view about which sexist insult is probably made more often. But my point really isn’t the sort of disagreement
about which one is made more often, it’s really to encourage you to think about the consequences
of using those kinds of stand-in, shorthand dismissals of the ideas and views and identities
of others, rather than to try to engage deeply. And in this educational setting, really learn
from people who you see as different from you. I think a lot of what Michael said is really
quite wise, and you should take it to heart. There is a sense in which if we’re going to
have an educational institution, it has to be experienced as equally available to everyone
there. That’s a crucial premise, I think. I see it as a dean, I see it on all sides
of the political spectrum. There’s no monopoly there left or right, I
should say. I wanna emphasize that when you read policies
like the Columbia policy that Suzanne read, or the Stanford policy, these are educational
policies. So, a university decides to allow all speakers,
or students to pick their speaker free from constraint, because they view it as educationally
sound policy to do that. Bob Jones University might have a different
educational policy, a different idea of what can educate their students, and they are under
no obligation to have Louis Farrakhan as a speaker if they don’t view him as advancing
their educational policy. So, it’s gonna come down to what a university
thinks its teaching. And I think what you see in the major university
policies like Chicago is we are teaching you how to be in a political space where they’re
going to be others. And those others are going to disagree with
you, and how you tolerate and deal with disagreement. And one crucial fact about dealing with disagreement,
which Michael stressed, is that when you are in a political space and have a common political
destiny with the people you are disagreeing with, they are not your enemies. They are co-citizens with you. So, if you’re going to draw this friend-enemy
distinction, you can’t be in a common political space. Carl Schmitt, contrary not withstanding. And that’s a crucial insight that educational
institutions are trying to give by allowing speakers of all stripes to come to a campus. And if they do, then they are under the obligation
of protecting those speakers and making sure that the audiences can hear them. I think there is an ambiguity that one gets
out of the idea of offense and hostile environment. On the one hand, I find it offensive, that
is to say I am subjectively offended by what is said. And on the other, I don’t like those ideas. And I think if we’re gonna have an educational
institution, we’re gonna have to very sharply distinguish between ideas being offensive,
and that has to be ruled out, all ideas are on the table to be evaluated, and forms of
address, which are offensive. None of us like to be called chauvinist pig
to our face, and no one should be called chauvinist pig to their face in a classroom. And we should be able to regulate that. That’s distinct from saying Title IX should
be thrown out. We should be able to say the latter, but not
the former. I think this very brief comment will follow
well on the last two. I think I should clarify what I was talking
about, the phrase chauvinist pig and so forth. I was thinking actually about academic talk,
as opposed to personal talk. University now regulates our personal interactions,
as well as our academic interactions. And unfortunately, this gets to the problem
of insult. Much academic analysis these days now includes
what can be read as a sort of insult. To call somebody a chauvinist pig, is actually
something not uncommon in a classroom. It’s not uncommon even in academic writing. And a large part of unfortunately left political
analysis actually elevates words which I think taken on their face might be understood as
insult. I’ll take one… for example, homophobic or
Islamophobic. Again, I personally abhor insult. But the unfortunate thing about these words
is that they identify a positional to easily a sort of medical condition. And this is not conducive to serious inquiry. I teach amongst other things, by the way,
early Islamic law, unbelievably. We do so in an entirely unprejudiced way. In a way that I hope is open and of interest
to everybody without any sense of insult. But the danger is that in most university
discussions of these matters, names are used, and academic analysis sort of includes insult
in the very terms of engagement. This just isn’t helpful. It actually just stirs up more disagreement
than is necessary, and it gets back to the danger that we have an establishment vision
of what’s exemplar talk, and then the disestablished vision. So, we’ve broad agreement on the panel about
the virtues of diversity of opinion and free speech particularly encouraging respectful
interaction among people who disagree. But just briefly, I’d like the panelists to
address the question of whether our topic here is a little bit just too broad. I sense from your comments that you don’t
view the university as a monolith. That freedom of speech will differ depending
upon whether you’re a teacher in the classroom, or whether you’re a student in the classroom. Whether you’re students out on the quad. Whether you’re a teacher engaged in research. Or whether you’re a teacher/student that chooses
to invite an outsider in as a guest on your campus. Anybody care to comment on those? Are we looking at different tests, different
evaluations for those. I certainly think that’s right, though. Turn on your mike. I certainly think that’s right, and I appreciate
Dean Post’s comments because it is important for us to realize that most of the issues
on campus are not actually sort of free speech doctrine issues, as if we were talking about
a municipal regulation of demonstrations. Now, there are aspects of university life
that I think could and should operate very close to that. They’re outside of the classroom, outside
of the professional academic scholarly function of the professoriate. Students are living there. When students are in the dorm, and in the
eating halls, and walking across campus, that is their home, and it’s their town, and it
is very much like a town. And I think it ought to operate very much
that way. The classroom, as he points out, isn’t. So, I do agree. It’s helpful just to be reminded, you don’t
just plug in doctrine, First Amendment doctrine to this. You have to think, as he says, about the educational
function. And that does mean that they’re gonna be different
rules for different things. I mean, take for example, the issue of invited
speakers, which both Suzanne and Bob spoke about. You know, the universities invite who they
want. I’m personally quite irritated when you look
around the country at who the commencement speakers always are. It’s just no ideological diversity at all. That is not a free speech issue. It’s a point of annoyance to me, but it is
not a free speech issue. They’re naming their commencement speakers
in order to please the audience that is there. But when a speaker… like Charles Murray
at Middlebury yesterday, is invited on a legitimate basis, and then can’t speak because of the
violent disruptions, that is a free speech issue. Why isn’t it just an educational failure issue? Well… the way I see it is that it may not
be the First Amendment free speech issue, but freedom of speech is, a kind of freedom
of speech in the right place at the right time, is part of the educational mission. And the reason for that is that universities
are raising up the citizens of the future. And one of the things we should be training
our students to do is to engage as democratic citizens. And that requires being able to deal with
difference of opinion. Right, I was gonna go to question. Briefly, go ahead. No, go ahead. Let’s go to questions and then we’ll try to
weave in these comments. The lights, yes, sir. Please state your name and affiliation, and
no speeches, just questions. Just go loud, I’ll repeat it, go ahead. [Audience member] Sorry, I just wanted to
ask Professor Goldberg. So, let me just clarify because I didn’t quite
say I think what you just said. I don’t identify this as a worry. I do think that there is a question of, a
real question or an importance to understanding that when a speaker comes to whatever college
or university, that for many speakers, particularly for those who hold views that are far outside
of the mainstream, whether right or left, that becomes a kind of a feather in a cap
that people usually tout. I spoke here and I spoke there, and therefore,
if I said something that’s of importance to a university community, it should carry greater
weight. Now, I think what you were saying is, “Well,
if all universities and colleges allowed anybody “to speak on their campuses, maybe that weight
“would be diminished in other settings.” And I guess I see your point. And maybe there would be a marginal difference,
but I actually think that higher education institutions do hold a special place in our
society. That people generally speaking, even if they
mock those of us who work here for being too academic, also understand generally that these
are places where people take ideas seriously, places where people try to advance research,
advance knowledge. And that being affiliated in some way, even
if just as an occasional speaker in these settings, does give a kind of gravitas that
one doesn’t necessarily get from speaking elsewhere. So, I don’t think a general policy as we have
here of allowing anybody to speak will overcome that. Now, I’m not saying, just to be very clear,
that that’s a reason for disallowing speakers. I am saying that that is a consequence of
allowing speakers, and something that we shouldn’t be naive about, whoever is speaking in our
institutions. Yes, ma’am. [Rebecca] So, I don’t know if my microphone
is working. I’m sorry if it’s not. Rebecca Dunkin from Cornell Law. So, hopefully, this is a question with an
actual concrete answer. I’m curious, what are the underlying legal
structures to some of these questions? Because I think it was Professor Post throughout
the different, and you’d be like Bob Jones University and like a public university with
their practices of like who they might invite. But I’m wondering if like the ideas of like
a limited public forum, and the idea that if a government entity here like maybe a publicly
funded state university opens up a limited forum, you’re not supposed to engage in like
viewpoint discrimination. Does that not apply to these situations? Is it truly just a question of educational
goals? And are the universities themselves the only
ones in charge of answering these questions, or does First Amendment law actually apply
in those situations?That’s a terrific question. As you know, the First Amendment doesn’t apply
if you’re not a state actor. So, we’re talking here, if you’re talking
the First Amendment, you’re talking about state universities, typically. And as to state universities, the court has
said that the state university can regulate speech as necessary to serve its mission. And if it didn’t say that, then of course,
they would have to tenure all professors, ’cause they couldn’t make content discrimination. Everyone would get an A, this sort of thing. All the children would be brilliant, et cetera. So, the question of whether they’ve opened
up a public forum, that’s precisely the right doctrinal question to ask. And typically, a court will answer that by
saying, “They’ve created a limited purpose public forum.” But if you look very carefully at limited
purpose public forum doctrine, you’ll see there’s almost no constraints on the purposes,
the limited purposes, for which you open it up. So, those purposes are going to be redefined
at the front end, in terms of educational objectives. That’s the way it would work doctrinal. Except the main limitation on limited public
forums is that those limits cannot be related to the suppression of unpopular ideas. And so, that has real legal bite. Well, once again, so, let’s say that the
limited purpose is to serve the interest of the biology students. And that’s your limited purpose, and you say
no creationists. My guess is that the court would uphold that
even though it’s a form of viewpoint discrimination. So, yes and no. Yes, sir. [Nick] Nick Gallagher, NYU Law. Thank you, Your Honor. Dean Post, you articulated, sorry, I didn’t
know this was on. You articulated, and I really appreciated
some first principles on how the university worked, that sounded a lot like Bill Buckley
in “God and Man at Yale”. You know, pre-1960s revolution idea of an
educational mission that’s positive rather than grounded in simple freedom for the students
and the professors to explore as they wish. But before that revolution, there was also
a great deal of consensus that the university would act as the sort of en loco parentis,
and also that it had to be kept very much in the mainstream of the American public’s
ideas on what should be taught, and that was an important point that the public could concern
itself with. If we’re gonna return to that type of system,
do those things then come back in? If not, why not? And what’s the justification for returning
to it beyond the right people won and now they’re firmly entrenched, and so, let’s get
on with it? Again, that’s an excellent question. So, I don’t think there was ever a time when
the American university was simple freedom to act as you wish. If you look, for example, at the foundational
statement of academic freedom in the United States, it’s 1915, by the American Association
of University Professors, very strong statement about the university having missions involving
research, involving education. The American University since the 1880s, when
it turned into a research university, before that it was a finishing school for young Christian
gentlemen, typically speaking. But after we learned from the Germans about
Wissenschaft and actually creating new knowledge, the American Professoriate and the American
Association of Universities understood itself to be engaged in the process of educating
young persons for adulthood, to become citizens, as you’ve heard, and of expanding knowledge. And the en loco parentis, as an understanding
of the education kind of ended in the ’60s. The fundamental premise of the free speech
movement was you can’t regulate us en loco parentis. Remember, in the free speech controversy in
Berkeley, it was about the university penalizing students who had gone off to demonstrate in
the South, committed illegal acts, and hence, were being penalized back at Berkeley. And they said, “You had no jurisdiction “of
what I do outside the university’s purview.” So, this role distinction between being in
the role of student and being outside the role of student was a denial of en loco parentis,
because the parent has control over the whole child. A lot of what you’re seeing now in higher
eduction, and in particular some of the regulation of that fraternity, I think it was in Oklahoma
that was singing in the bus outside of the purview of the university, I think goes to
a controversy of whether we want universities to be en loco parentis again. A lot of the controversy you see about safe
space is about whether we wanna return to en loco parentis, and that’s a very controversial
issue about what we want our higher educational institutions to do. Do we wanna take charge of the whole student
or just the role of segregated student that’s very tightly connected to the instrumental
task of education. I think there’s a connection between the
last two questions because what’s different from the past is not really a degree of control
within the university, but the degree of control from outside from the federal government,
and sometimes direct, sometimes with conditions. And eventually, that will have consequences. One cannot keep the First Amendment out of
these situations. But these are areas of doctrine that have
yet to be explored. I could just add one quick point, just in
terms of thinking about these questions in a broader context of how higher education
institutions regulate students. There’s really a tremendous web of regulation
of you that you are probably more familiar with than some of us are. But from the moment you enter an institution,
you have obligations, some imposed by state law, others by the school, related to vaccination,
related to illegal file downloading on the university’s internet, related to can you
have halogen lamps or candles in your dorm room, related to myriad things, right? Do you have to have health insurance? Do you not have to have health insurance? And so, it is useful when we think even about
questions of en loco parentis, or it is useful to think about the many different functions
that the university serves, and the kinds of regulatory environments it needs to create,
or whether it ought to create, to carry out those functions. We’ll not analyze the halogen lamp risk in
the same way as we would analyze the risk of disinviting a speaker, but the educational
function of the institution, as well as the function of the institution to enable all
students who come to it for an education to have that education is quite complex. And we benefit from situating this conversation
to some extent in that one. It does seem to me that universities are
beginning to act sort of selectively en loco parentis again. And this isn’t just a free speech thing, but
a lot of it does have to do with speech. When you think about controversies over, even
Stanford Law School has been known to take an interest in what students are saying over
Facebook. Yale took an interest in what Halloween costumes
its students were wearing. I think this is a rather radical change from
when– The ’60s. When we were in college. I just think there would have been an explosion
if the university had expressed the slightest interest in regulating what we worn as Halloween
costumes. I also think, though, and this is useful
to keep in mind, there’s a very different relationship not only from the university
toward its students today, but from the students toward the university. What the students expect and ask of university
administrators and of faculty members that are really quite different from the sorts
of things that many of us might have asked when we were in school. Again, it’s not to diminish the significance
of these questions, but it is to say that the relationship between students and schools
is not static. So, when we look to the en loco parentis questions
of then and today, that we’re really working in quite a different world. I don’t think most students saw themselves
as consumers of education until much more recently than say, any of us from this panel
were in school. Suzanna’s so right, and this is so shocking
to me because a lot of the en loco parentis meddling in students’ lives is at the behest
of students who go running to the grownups and asking them for the interference. And I say, “Grow up.” Maybe a future panel will be on the synergy
between helicopter parenting and helicopter administrating. I was just out at Stanford and I was on
a panel with the dean out there, and she was saying one of the new points in law school
administration is, when we were in school, you would never ask for a statement from the
school about this or that or the other thing. And now routinely you get students asking
you, “Make a statement about Black Lives Matter,” or “make a statement about the election of
Trump,” or something like that. And as Suzanne’s saying, this is coming from
the students, so the change in the nature of the education isn’t just one side, it’s
two sides. And I do wanna resist the idea that it is
come, as is often framed in popular debate, that it is coming only from liberal or progressive
students. I think it is coming from a range of students
who have a range of experiences while in an institution that they feel are interfering
with their ability to learn. It’s not to say, again, that the issues are
complex, but in the spirit of trying to understand those with whom we disagree, thinking back
to the question of what are the consequences of a fully free speech environment is a useful
one. Right, this gentleman wins the award for
the most patient– [Man] Thank you. Potential questioner, sir. [Man] I was gonna ask for the whole panel’s
opinion, but I don’t know, okay. I’m 56, I’m a non-lawyer member of The Federalist
Society. And I went to Michigan. And I was in Michigan as a student when Reagan
won. I’ve never seen anything like this before
where the students are demanding the silencing. That is very, very concerning to me. What dynamic do you think is involved in this? Is it technology? I mean, I don’t see students before wanting
non-white only spaces. They want safe spaces. I mean, damaging property, but for these reasons. Is there something through your illustrious
careers you see different in people that are doing this? That relates to a question I was going to
pose to the panel, which is the heckler’s veto. Is that not a concern here? I mean, if I were a dean, I would want everyone
to be happy. And I’d want them to have a great experience. I want them to donate after they graduate. Especially that. Especially that, the Dean says. So, I have that in mind. I want free and open and respectful dialog. But when one group or another brings somebody
who is known as controversial, is there a risk that if the hecklers are organized enough
and loud enough, that we never hear any controversial speech on campus. Is that consistent with your question, sir? Do the students have, do you fear heckler’s
veto among student groups on campus, that will suppress free speech on your– I wanna push back on the assumption that’s
come up that students are requiring this. Some students ask for this, and other students
don’t. And the real question then is why does the
university listen to some students, not others? There could be a political explanation of
this. There could also be an explanation that comes
out of, frankly, university counsel, which university counsels tend to be, strategically
have made, I think, a bad choice. They assume if you want to avoid litigation,
what you do, you respond and control, and then control more and more and more. But at a certain point, that means best practices
will be to control, and the result will be if you don’t, you’ll get in trouble. So, universities eventually will pay a price
for this. It may come from any directions. I’m not sure, and I can really only speak
from my experience here what the general counsel or any other office would be seeking to control
in terms of speech on campuses, but that has not been consistent with my experience of
this clamping down. I think one of the real differences between
colleges and universities, or higher ed institutions today and 40 years ago, is that the student
population is really substantially different. It is more racially diverse. It is more economically diverse. There are greater numbers of women on campus. There are greater numbers of first generation
students on campus, and low income students on campus. There are greater numbers of international
students on campuses. And so what does that mean? By definition, it means the nature of the
environment is one that is different from what it was a couple of decades ago, which
raises questions. To what extent, if at all, should the structures
of the university shift in order to ensure that this more diverse student population
is fully gaining the benefits of the education that they signed up for and are paying for? So, that doesn’t answer the question of what
to do, but I think it’s an important factual baseline to keep in mind when we think about
why some of these tensions are rising now in ways that they didn’t earlier. And I think an analog, or a sort of somewhat
attenuated example is many people have said, “Well, why do universities address issues
related “to sexual assault, and is that all new? “Was there not all of this sexual assault
before “the past couple of years when the issue has come up?” And if you pay attention maybe to people you
disagree with or maybe people you agree with, I think the conversation would be actually,
though circumstances haven’t changed, what has changed is people’s willingness to identify
some of the issues. I think you could see the same thing. I mean, to take a very different context. Has drinking and drug use changed on college
and university campuses, and does that require schools to interact differently with their
students because of these kinds of behaviors? On one version of the story, yes, there is
a difference. There’s more binge drinking. There’s a wider variety of drug use. On another version of the story, no, it’s
really not so different. There was a lot of heavy over drinking and
over drug use. There has been for many decades. And the question again is, what are the expectations
that both students and parents of students bring to universities in terms of addressing
these issues, and what are society’s expectations around addressing these issues? We don’t live in a static environment. Universities, fortunately, are not static
places. Again, how do we interact and what are the
issues we need to think about in making policy? [Bennett] Thank you all for being here. My name is Bennett Hamphillos, I’m also from
Cornell Law School. Ideologically, for full disclosure, I’m probably
more with Professor McConnell, but this is FedSoc so I’m going to provide devil’s advocate
argument here, where if the rights of free speech is absolute, and obviously, there are
exceptions to that, but when a speaker’s invited to campus, many times there’s a duty on the
university to pay for security, for example. And it’s unfortunate that the state of affairs
has gotten to that point, but suppose we’re not dealing with a university with a very
large endowment like University of Chicago, a smaller community college that doesn’t have
the resources to put up several thousand dollars every time a very controversial speaker comes
to campus. So, in those cases, would there be an exception
where the school would have to say, “Hold on, we’ve used up our resources “for the year
for controversial speakers. “We literally can’t afford hiring a small
army “to defend from looters and rioters and everything.”? Would there be a possible exception in those
scenarios? So, that’s a great question and there’s
no easy answer to this. A great question and there’s no easy answer. If this were a city that is with the full
First Amendment applying, the Supreme Court held in a case called Forsythe verses National
Social, or basically a Nazi party, that it is unconstitutional to charge a group for
the privilege of exercising the right of freedom of assembly. More because of the anticipated violent reaction
of others, that that’s a kind of a heckler’s veto. I’m a little skeptical that that could or
should be applied even to public universities, but maybe. But I do think this, I think universities
ought to do their best to come close to that. And I think it will be cheaper in the end
if the first time this happens that they hire all the guards they need and arrest the people
who commit violent acts, and make it clear that heckler’s vetoes are not gonna be successful. I think the expense comes from doing it on
the cheap, and letting heckler’s veto succeed, and then they’re gonna have one of these things
every time there’s a speaker that groups don’t like. All right, we started five minutes late,
that means we have five minutes. But I wanna end on a practice tip that I think
Judge McConnell will agree with me. We usually allocate 15 minutes a side, and
for reasons that none of us quite understand, even lawyers that are tremendously ahead in
winning their case, are disinclined to sit down with five minutes left on the clock,
and they just keep going. But I think this panel’s done such a great
job, we’re gonna quit before the red light comes on, and let’s congratulate them. (lively pop music_

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