Cambridge, MA
Saturday, March 30, 2019
Thank you for that kind introduction, Chase (Browndorf). It is a pleasure to be back at Harvard Law School. I am so pleased to see at this alumni event many friends from my time here. It is a special honor to share a speaking role at this symposium with classmates who have become leaders in law, business, and public policy: Johnathan Skrmetti, Annie Donaldson Talley, Katie Biber Chen, Sarah Harris, Jeff Harris, Judge Andrew Oldham, and Assistant Attorney General Beth Williams. In particular, I would like to congratulate Beth, whom you are honoring tonight with an award. She is most deserving. Beth was one of the first people I met when I entered law school, and she stood out as then as intelligent, principled, and hard working. She also stood out for her warmth and generosity. All these years later, we are now colleagues at the Department of Justice and I am pleased to report that those good qualities that distinguished her during our law school days have only strengthened. We are fortunate at DOJ to have Beth in the critical role of Assistant Attorney General for Legal Policy.
As you heard during Chase’s introduction, the Office of the Associate Attorney General oversees a broad swath of the Department of Justice, and we have pursued an ambitious agenda over the last two years—including managing the defense of administration priorities in court, deploying civil litigation tools to combat the opioid crisis, and pursuing regulatory and litigation reform. Another significant priority has been to fight to uphold and advance free-speech rights on our nation’s college and university campuses. Given our setting today, I would like to focus on this issue.
The Symptoms of the Free Speech Crisis
There is a free speech crisis on the American college campus. Nearly every month, we hear of new examples.
Many schools directly suppress speech through overt practices and policies, including speech codes. An example is Clemson University, a public school in South Carolina that is subject to the First Amendment. Clemson’s Student Code of Conduct makes it a violation to engage in any “verbal” act “which creates an … offensive educational, work or living environment.” A violation of the Code is punishable by everything from a written reprimand, to a “specified period of review and adjustment,” to permanent expulsion. The Code of Conduct provides no definition of “offensive,” leaving students to guess at what will be deemed offensive or favorable, grating or good. Clemson has maintained in press statements that it “interprets and applies … this provision of [the] Student Code[] in a manner consistent with the law, including the First Amendment.” Then why not just fix the provision so students are not left to guess? The after-the-fact, subjective judgment—the chilling effect of an ill-defined speech code—is the very problem. With respect to serious and divisive topics, like politics and social policy, what rational student—knowing the potential penalties that await and the hypersensitivity on most campuses today—would want to hazard bringing a test case to determine what speech administrators will deem impermissibly “offensive?”
I note Clemson only as an example; it is hardly alone. These speech codes appear at schools large and small, in cities and in rural communities. For example, the Department of Justice filed a statement of interest in 2017 in a lawsuit against Georgia Gwinnett College, a public institution outside of Atlanta. The Student Code of Conduct there prohibited speech that “disturb[s] the … comfort of person(s).” Whatever that means.
And there are scores of policies like this across the nation. Each year, the Foundation for Individual Rights in Education (FIRE) surveys the speech policies of hundreds of public and elite private institutions. In 2019, FIRE found that 133 institutions either (1) have a “policy [that] both clearly and substantially restrict[s] freedom of speech,” or (2) bar[] public access to … speech-related policies.” Another 285 schools “maintain policies that could be interpreted to suppress protected speech or policies that, while clearly restricting freedom of speech, restrict relatively narrow categories of speech.”
Speech and civility codes like these, at public institutions like Clemson, violate what Justice Scalia rightly called “the first axiom of the First Amendment,” which is that, “as a general rule, the state has no power to ban speech on the basis of its content.” As then-Judge Alito once wrote in a Third Circuit case: “the Supreme Court has held time and again, both within and outside the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.”
And speech codes are just the beginning. Some schools limit students’ right to freely express themselves to so-called “free speech zones,” which often comprise ludicrously small areas of campus. For example, the Department of Justice filed a statement of interest in a case against Los Angeles Pierce College, which prohibited free speech to 616 square feet on a 426-acre campus—about the size of three parking spaces. These cramped zones are eerily similar to what the Supreme Court warned against in the seminal 1969 Tinker case about student speech: “Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven.”
On still other campuses, permit or permission requirements are a problem. Such prior restraints are classic First Amendment violations and make it easy to restrict speech based on its content under some other pretext. For example, the Department of Justice filed a statement of interest in a lawsuit challenging the University of California, Berkeley’s “High-Profile Speaker Policy,” which gave university administrators discretion to impose severe restrictions on the time and place of speeches based on administrators’ subjective determinations about how the audience might react to the identity of the speaker or the content of the speech.
A fourth speech-suppression tactic, and the one that has been most visible in recent months, is the “heckler’s veto.” The heckler’s veto occurs when authorities permit objectors to intimidate and shut down speakers without consequence.
The events in 2017 at Middlebury College are a stark example. Student protesters violently shut down an event featuring an invited speaker and one of the school’s own professors. As soon as the event began, the protesters shouted for twenty minutes, preventing the debate from occurring. When the debaters attempted to move to a private broadcasting location, the protesters pulled fire alarms, stalked after them, surrounded them, and began physically assaulting them. During the melee, one protester grabbed the professor by the hair and twisted her neck. She suffered a concussion and required a neck brace. When the debaters tried to escape from this siege by car, the protesters pounded on the vehicle, rocked it back and forth, and jumped on the hood. In short, to shut down an academic debate, Middlebury students engaged in a violent riot, potentially breaking numerous laws and causing serious injury.
In response, Middlebury merely placed a disciplinary note in some students’ files. Not a single suspension. Not a single expulsion. Not a single arrest. Students physically assaulted their professor, sending her to the hospital, and the most the school could muster was an apology and stern warning. These protesters engaged in allegedly criminal conduct that should have been dealt with as such. Instead, the administrators allowed an unruly mob to run the campus they are supposed to superintend.
And the Middlebury melee was not an isolated incident. Similar mob rule has broken out at Berkeley, Evergreen State College, William & Mary, and City University of New York, to name just a few. The William & Mary and CUNY shutdowns were particularly telling, because the speeches that the mobs shut down were about … free speech on campus.
Shutdowns and shout downs of high-profile speakers make the headlines, but the heckler’s veto is not limited to these examples. Indeed, it is creeping into the daily life of academic inquiry and debate, carried out against students and faculty who express ideas out of sync with predominant views on campus.
Harvard Law School is no stranger to this pernicious trend. Just a few years ago, a group of students took over a student lounge and declared that they would sensor other students’ speech within that space. The student group tore down signs, claiming the unilateral right of pre-approval of all messages in the space. News reports state that these actions led to counter vandalism of the student group’s posters. Administrators emailed the student body statements affirming free speech and warning that school policies would be enforced, but it is not clear from news reports that any student was ever held accountable for such violations.
Another example of the heckler’s veto is unfolding right now at Sarah Lawrence College in New York. There, a professor of political science published a New York Times op-ed asserting that, on his campus, the campus programs planned by administrators were, in his view, “politically lop-sided,” and he explained the issue in terms of his broader academic research regarding the political leanings of college faculty and administrators. According to news reports, soon after the op-ed appeared, his office door was vandalized, the professor alleged that the college president accused him of attacking members of the campus community, and—just recently—a student group occupied a campus building and demanded his “position at the college be put up to tenure review” conducted by the student group. According to the professor, very few members of the faculty or administration have come out in favor of the professor’s right to debate these ideas.
Now let me be clear: protesting a speaker or challenging his or her ideas are valid and important exercises of free speech and can help create the kind of debate that is the bedrock of American society and academic inquiry. Indeed, as Professor Akhil Amar explained in a 2010 article: “the Constitution was born in a land awash with speech and through a process that teemed with talk of the freest sort, including lots of talk harshly critical of existing officials and institutions.” The drafters of the First Amendment cherished protest; they were protestors.
But that kind of teeming debate, that tradition of American dissent, is not what’s happening on college campuses today. As some Middlebury professors rightly declared in a Statement of Principles drafted after the violent events in 2017: “A protest that prevents campus speakers from communicating with their audience is a coercive act.” Hecklers are enforcing silence on others, so that only their own speech can be heard, and they are willing to use drastic means, including crimes of violence, to achieve this censorship.
The heckler’s veto only succeeds when it is abetted by the echoing silence and inaction of those in a position to stop it. By giving in to these tactics, administrators are creating a moral hazard that results in ever more suppression of speech. If schools would impose serious consequences on hecklers, it is likely such tactics would abate.
But few institutions have done so thus far—indeed, many administrators and professors seem afraid to take action that might expose them to criticism or protest from the mob. Maybe you’ve encountered that fear on your own campus. Or maybe you’ve encountered something even worse: some faculty and administrators go beyond inaction and become part of the mob. Thus, while many universities pay lip service to free speech, they seem to be unable or unwilling to sustain an environment that actually inculcates and fosters respect for that principle. The more this kind of speech suppression happens without consequence for the perpetrators, the more it is abided and encouraged, the more the behavior is repeated and normalized.
So the confrontations, and attendant costs, keep escalating, and respect for free speech keeps declining. No surprise, then, according to recent polling, an increasing number of college students express support for practices and values that are incompatible with the First Amendment. According to 2017 Gallup polling:
- 49% favor “instituting speech codes, or codes of conduct that restrict offensive or biased speech on campus that would be permitted in society more generally”;
- 30% of students believe colleges should be able to ban expression of “political views that are upsetting or offensive to certain groups”;
- nearly 40% of students believe it is always or sometimes acceptable to shout down speakers or to try to prevent them from speaking; and
- 10% of students believe it is always or sometimes acceptable to use violence to stop speech.
Think about this for a moment. Forty percent of American college students express support for censoring and shutting down speech with which they disagree, and ten percent would resort to physical violence to achieve that end. These responses cannot be dismissed as unreliable or inconsequential polling responses because, as I have just explained, speech suppression is playing out daily on campuses across the country.
Academic Freedom: The Right to Be Wrong
I have not mentioned yet the most telling statistic of all from the Gallup poll. More than 60% of students agree with the following statement: “the climate on my campus prevents some people from saying things they believe because others might find them offensive.” In other words, the clear majority of college students believe that the climate at their school suppresses the open expression of ideas. Reflect upon the seriousness of this for a moment. What has happened to our institutions of higher learning? If that is what students believe—if they believe they are not free to freely explore, debate, and refine ideas in college—what is the purpose of being there?
This brings me to the larger point I want to make today. What I have just described—the speech codes, the censorship, the hecklers vetoes—are symptoms of the free-speech crisis, not the cause. The root cause of the campus free speech crisis, I think, is that we no longer have broad agreement on the purpose of a university. And we no longer have broad agreement on the student’s place within the university.
Let me turn first to the purpose of the university. Historically, one of the foundational principles of the university was academic freedom—the right to pursue knowledge, and engage in scholarly inquiry, without fear of reprisal. The principle dates back to at least 1155, when scholars petitioned Roman emperor Frederick I Barbarossa for protection and he responded by issuing the Authentica Habita. That edict celebrated the value of scholastic pursuits and explicitly protected scholars in the pursuit of scientific inquiry. Among other rights, the document guaranteed scholars safe passage during travel and protection from attack. (Given recent violent events on campus, scholars might want to unearth the document and present it to their deans as an example of what leadership on academic freedom looks like.)
The Authentica Habita was incorporated in the Justinian Code and it helped establish the modern university as a place of free inquiry. Over the centuries, academic freedom blossomed and solidified, so that by the time Thomas Jefferson founded the University of Virginia he would commit, in a letter of 1820, that the institution would “be based on the illimitable freedom of the human mind,” and its residents would not be “afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”
The last portion of Jefferson’s quotation is critical: “to tolerate any error so long as reason is left free to combat it.” Jefferson was saying that we have the right to be wrong. And, importantly, that there is nothing to fear in being wrong “so long as reason is left free to combat it”—that is, so long as we are free to speak in opposition to an error.
These ideas: the freedom to speculate, to be wrong, and the freedom to refine and rebut speculation and error, lie at the very core of productive academic inquiry. In the hard sciences, for example, the scientific method is rooted in the attempt to falsify a hypothesis. As Justice Frankfurter put it in his concurrence in Sweezy v. New Hampshire in 1957: “Insights into the mysteries of nature are born of hypothesis and speculation.” Frankfurter goes on to say that this need for speculation is even more acute in the “social sciences, the concern of which is man and society.” Frankfurter concluded: “For society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible.”
Frankfurter thus cited approvingly the many commitments to academic freedom that universities and scholars had made over the years, and he quoted extensively from a then-recent statement of South African scholars who were fighting for academic freedom, and against apartheid policies, in their country’s universities:
A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—“to follow the argument where it leads.” This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university.
Dogma and hypothesis are incompatible. This was the traditional creed of the university. It was the bond shared by scholars and students. It was the defining purpose of higher education. Unfortunately, it is difficult to characterize the modern American university as still embracing this creed. Through hiring practices, course offerings, extracurricular funding, speaker series, speaker dis-invitations, disciplinary actions—through all the daily, often invisible practices and acts that make up university life—you can now often find adherence to prevailing dogma at the expense the freedom to hypothesize or dissent.
An example is unfolding right here at Harvard Law School. A student group that has been around for many years—The Forum—describes itself as “a non-partisan student organization … dedicated to bringing open discussion on a broad range of legal, political, and social issues to the Harvard Law School campus.” It proudly boasts on its website the incredibly diverse range of speakers it has brought to campus over the years, including, even, the dictator Fidel Castro. Recently, however, the group disinvited a speaker—an alumnus of the law school—because the Forum’s board determined it disagreed with his past commentary on a controversial historical issue, but one that is apparently unrelated to the topic he was planning to discuss. Does that sound like a commitment to “open discussion” to you? Does it sound like a fulfillment of official university policy, which states that “by accepting membership in the University, an individual joins a community ideally characterized by free expression, free inquiry, intellectual honesty, respect for the dignity of others, and openness to constructive change”?
In place of the “spirit of free inquiry” highlighted by Justice Frankfurter, we now see a focus on feelings—that feelings, and not reason, should dictate what is said on campus and the obligations of members of the university community. The necessary implication is that any idea or speech that contradicts current majority beliefs or feelings is offensive, hurtful, and valueless—and can properly be silenced. Outrage culture is replacing inquiry culture on our campuses.
Even tepid disagreement can be deemed hurtful and thus forbidden. Take, for example, the case of Erika and Nicholas Christakis, faculty-in-residence at one of Yale’s colleges. Erika Christakis is an expert in early childhood education, and has long espoused the theory that over-parenting is depriving children of valuable learning experiences. Accordingly, when Yale administrators sent out an email warning students not to wear “culturally unaware or insensitive” Halloween costumes, Erika Christakis responded in an email to her college’s residents. She wrote that she did not want “to trivialize genuine concerns about cultural and personal representation, and other challenges to our lived experience in a plural community,” but “wonder[ed] if we should reflect more transparently, as a community, on the consequences of an institutional (which is to say: bureaucratic and administrative) exercise of implied control over college students.” She continued this theme for several paragraphs, exploring the value of, and hard questions raised by, a costume code. She concluded, “Nicholas says, if you don’t like a costume someone is wearing, look away, or tell them you are offended. Talk to each other. Free speech and the ability to tolerate offence are the hallmarks of a free and open society.” For their troubles—for suggesting that the topic of a costumes codes is worthy of debate, and for praising the value of discussion and free speech—the Christakises were subsequently subjected to months of protests by students, and ultimately resigned their positions.
I point out these events at length to this audience in particular not just because they are a stark example of the erosion of respect for free speech on campus, but also because they demonstrate that this crisis is not simply about protests of a few controversial cable news personalities invited to campus for one-time speeches. The very core of university life—open debate among scholars and students—is under attack.
I want to make two important points about my thesis here. First, this is not an issue of partisan politics: speech suppression is incompatible with the purposes of a university whether it comes from the left, right, or middle. It was just as wrong for conservative protestors at Whittier College to shout down left-leaning state officials as it was for liberal protestors at CUNY Law to shout down a conservative law professor. It was just as wrong for the protesting student group here at Harvard Law School to tear down posters critical of them as it was for others to tear down the student group’s posters.
Second, there are those who contend that certain speech is not deserving of protection. They say that some speech is hurtful. And let me be clear: I am not expressing personal agreement or disagreement with any of the views on either side of the examples I am pointing out today. That is because it does not matter whether I—or we—agree or disagree. The right of free speech does not exist to protect the ideas upon which we all concur at a given moment in time. It presupposes that the wheel will turn and turn again, that the majority view will change, and that when it does, those in newly in the minority will still be as free as the day before to speak and change minds, to listen and have their minds changed. And so, as Justice Brandeis eloquently stated in his 1927 concurrence in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
The Role of Students at a University
All of that said, in addition to the loss of a common understanding of the purpose of a university, we also seem to have a loss of agreement regarding the student’s place within the university.
Here again, the Christakis affair is instructive. One of the students who later protested Nicholas Christakis explained why: “It is your job to create a place of comfort and home for the students who live [at the college]. You have not done that. By sending out that email, that goes against your position as master. Do you understand that?!” Christakis responded: “I don’t agree with that.” What was Christakis’s view? We can look to the original Halloween email, where Erika stated: “American universities were once a safe space … for maturation.”
Historically, young adults were seen to arrive on campus as pupils, whose minimal life experience necessarily meant that the university life—with all of its new experiences, social interactions, and novel academic inquiries—would challenge them, catalyzing growth and change. Said differently, universities were supposed to make students uncomfortable—to teach them they didn’t spring upon the world, at eighteen years of age, fully formed with all the answers and far-reaching wisdom.
That shared understanding is quickly disappearing. In its place comes the idea that teenagers are already worldly when they first cross the university gate, and that the campus is simply to be a comfortable halfway house between the family home and the first apartment of a twenty-something. Whatever the causes, it seems that the student is no longer universally seen as the protégé in the campus environment, but as a consumer to be satisfied.
Perhaps university administrators and faculty think they are doing their students a favor by prioritizing their immediate feelings, their short-term satisfaction, over their intellectual and emotional maturation. They are not. They are failing to teach their students how to think and thrive as adults in a complex and contentious society. The university is supposed to be where students are challenged, grapple with intellectual opponents’ arguments, and leave more informed. Instead, too many members of the next generation graduate believing that they can learn nothing from people with whom they disagree.
Sheltered Students Make Sheltered Citizens
Now, many things that happen on college campuses we can just leave there. After all, I’ve just spent several minutes extolling the virtues of universities as laboratories for unorthodox ideas, novel hypotheses, and failed experiments. And everyone here today has, I’m sure, heard the flippant notion that the real world doesn’t concern itself with what happens in the ivory tower.
But American society-at-large needs to be deeply concerned with the anti-free speech movement in the modern academy. The students who indicate in polls that they do not value free speech, the students who shout down or violently shut down speakers, the students who simply are not exposed to dissenting viewpoints—all of these individuals will soon be the voting public and the leaders of American society. Thomas Jefferson explained the issue this way: “In a republican nation whose citizens are to be led by reason and persuasion and not by force, the art of reasoning becomes of first importance.” Put simply, students will not become good citizens if they do not learn how to interact maturely in a pluralistic society.
Free speech—and unwavering toleration of free speech—is at the heart of American society. It is not just an individual right. It is the bedrock of popular sovereignty. It is a structural protection that preserves our form of government. It is our greatest guarantor of liberty. This has been a common theme of American thought from the Founding forward. Madison called free speech “the only effectual guardian of every other right.” Frederick Douglass asserted that: “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power.”
That is why the current academic movement that permits or encourages the silencing of opposing viewpoints is so urgently worrisome. It is not just depriving students of the best possible education. It is not just depriving scholars of academic freedom. It threatens to deprive American society of a new generation of citizens who, like their forbearers, share a deep and abiding commitment to free speech and the liberty it guarantees. What’s happening on campuses today is simply toxic for our nation’s future.
For these reasons—because American society depends upon citizens who understand the value of free speech—the Department of Justice has been fighting for the First Amendment on American campuses. We are using the Department’s bully pulpit to raise awareness, and, as I have mentioned, we are getting involved in litigation against public universities that violate free speech rights. For publicly run institutions, upholding free speech rights is not an option, but an unshakable requirement of the First Amendment. Thus, to date, we have filed statements of interest in five lawsuits that seek to vindicate students’ free expression and free association rights. The lawsuits have been against University of California, Berkeley; Pierce College in Los Angeles; Georgia Gwinnett College; the University of Michigan; and the University of Iowa.
We will continue to support plaintiffs in such cases and take action in future cases, and we want aggrieved students and faculty to know the Department is open for business on this issue. We welcome notifications about pending lawsuits and invitations to get involved.
More broadly, the President recently issued an executive order stating that the “Administration seeks to promote free and open debate on college and university campuses,” which are “an essential feature of our Nation’s democracy” and promote “learning, scientific inquiry, and economic prosperity.” The President directed federal agencies “to ensure institutions that receive Federal research or education grants promote free inquiry.” Notably, private institutions like this one are major recipients of such funds.
So that’s what the Department of Justice and the broader Administration is doing about this crisis, and there will be more to come. I’ll close, however, with this question. Where are the professors? Where are the administrators and deans? Where are the boards of trustees? Why hasn’t every college president and dean put out a letter like the one of Dean Ellison at University of Chicago, in which he boldly explained to incoming students that the school would not be one where “individuals can retreat from ideas and perspectives at odds from their own.”
It seems that today there is hardly a major political or societal question about which the academy fails to take a stand—through joint statements signed by hundreds, through media interviews, through op/eds, through congressional testimony, through professors’ amicus briefs. But on this issue, aside from a few sparing faculty members dotted around the country, there seems to be more silence than action. It is utterly inexplicable, because this is their very profession at stake. As I mentioned earlier, academic freedom first took hold in 1155, when scholars demanded protection from Emperor Frederick. It is time for the community of scholars to do so again. It is time for members of the academy to again demand the right to be wrong and to make the university the place where hypothesis reigns over dogma.
Thank you very much.
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