Defending campus free speech in a polarized age: Big Brains podcast with Paul Alivisatos and Tom Ginsburg

Show Notes

Free speech is probably one of the most polarizing public topics of debate. And those arguments only become more intense when it comes to free expression on college and university campuses. Should professors be allowed to say whatever they want? What about speakers being invited to campus? Who gets to say what is acceptable and unacceptable?

The University of Chicago has had a unique and long history of defending free expression, and this year is building upon that commitment by launching The Chicago Forum on Free Inquiry and Expression. That forum is being led by renowned UChicago law professor Tom Ginsburg. He joins our podcast along with President Paul Alivisatos to talk about why universities must have a commitment to free inquiry—and how this new forum plans to promote free and open discourse, while addressing present-day challenges.

Transcript:

Paul Rand: Free speech. It’s a subject that is one of the most polarizing in today’s society and one of the places the intense debates around free speech is playing out, are on college campuses.

Tape: Out. Get out. Get out. Get out.

Tape: Free speech on college campuses under attack.

Tape: It is not about creating an intellectual space, it is not. Do you understand that? It’s about creating a home here!

Tape: Speech codes and identity politics on college campuses.

Paul Alivisatos: Because of the critical role that knowledge plays in our economy, universities have become more central to the health and life of societies than ever before.

Paul Rand: That’s University of Chicago President Paul Alivisatos.

Paul Alivisatos: And at the same time, our societies globally have also become more polarized. The combination of all those means that how free expression plays out in a university, it is a central concern of society. It’s a central concern for democracy.

Paul Rand: Some very complicated and nuanced issues play out all the time at colleges and universities. Should professors have unlimited speech to say whatever they want? What about speech that some students may find harmful? What about outside speakers coming to campus who have controversial views? Who gets to say what is acceptable or unacceptable speech? As our listeners know, this show is produced at the University of Chicago, a place with a distinct reputation when it comes to free speech.

Tape: There are some universities that are actually getting this right-

Tape: Oh, University of Chicago is a huge one.

Tom Ginsburg: It’s been at the sort of heart of the University of Chicago since its founding in 1890.

Paul Rand: That’s renowned UChicago law professor Tom Ginsburg.

Tom Ginsburg: We’re living in a time of tremendous social change, where there’s enormous problems facing society. And the job of universities is to make progress on those problems, we’re knowledge institutions. And how are we going to make progress on this if there’s some large areas that we cannot inquire into.

Paul Rand: Free expression has been crucial to the University of Chicago’s mission since its founding. And this fall, UChicago is building upon their reputation by launching the Chicago Forum on free inquiry and expression.

Paul Alivisatos: The goal is to have it be a place where we are able to practice, exemplify, even to ask questions about what does it mean to be a place where free expression is practiced, and also to share that with others outside the university.

Paul Rand: One of the forum’s leaders will be Ginsburg who also hosts another University of Chicago podcast about human rights called Entitled.

Tom Ginsburg: Obviously, universities cannot function as places of free inquiry if the broader culture is not committed to free expression, and so that’s a kind of ambitious part of our agenda which will involve, we hope, pushing out and changing not just ourselves but maybe, if we’re lucky, changing the broader culture a little bit too.

Paul Rand: Welcome to Big Brains where we translate the biggest ideas and complex discoveries into digestible brain food. Big brains, little bites. From the University of Chicago Podcast Network. I’m your host Paul Rand. On today’s episode, free Speech at universities.

If we’re going to dig into what free expression means at universities, we first need to understand what we even mean by free expression at all. And it turns out that the answer isn’t as simple as you might think.

Tom Ginsburg: We use the term free expression to refer to all kinds of things, and it’s not always free and it’s not necessarily expression, but that’s the term we use. So to define free expression I think is quite context dependent. In the context of academia, I think free expression has a very particular meaning and it’s grounded in the vision of what the role of universities is, that the university is a space for autonomous discovery in which we have conversations about what the truth is. It’s a vision of the truth as being provisional. We can never settle on a final version of truth since. We can never settle on a final version of truth, we have to have a continuous open democratic conversation about what truth is. Then it follows that you really need to structure an environment into which people can be free to voice their opinions, to take dissident views, to critique each other, to continually sharpen ideas. Ideas are proven through the heat of battle, if you will, combat with other ideas and gradually over time we move closer to the truth, even though that’s something we never can ever get to.

Paul Rand: Well, that seems like a pretty logical open idea. Why would there be any disagreement around freedom of expression if what that idea in mind of the benefits to it?

Tom Ginsburg: I think that comes from sort of two ideas. One is that there actually is a fundamental truth. In the history of ideas, it’s been religious doctrines which have sought to constrain certain kinds of research, Galileo of course famously. And that’s obviously very alive today, though not so much in America as in many other countries around the world where it is very much a live constraint. But there’s another source of challenge to the pragmatist vision of truth and that’s the postmodernist view, that there is no truth anyway and therefore it’s all politics and it’s all just whoever gets control of the machinery of production, of ideas, if I can use the term. Truth, isn’t something we should even aspire towards. I think that’s also a bit of a threat because what it sets up is the university is an arena for contestation, for control over who can say what speech is good.

What isn’t the idea that the feelings of students and such should be a major constraint rise to the fore if you don’t think that that other thing has any value. There’s also the grave concern of a chilling effect, that certain topics will just not be looked at because people are afraid of the consequences either from challenges from the society, if you will, but more problematically from the administration itself. And so a very famous incident, it was actually this last year up in Hamline University in Minnesota where an instructor, Erica Prater Lopez, an art historian, was showing images of the prophet.

Tape: Well Hamlin University lecturer showed a painting of the prophet Muhammad and after an outcry over the art history class by Muslim students, the adjunct professor lost her job.

Tom Ginsburg: She explained very clearly in her syllabus and before showing the images why she was doing it. She was really very pedagogically responsible. A student complained, they declined to renew her contract, she was an adjunct, and then a university bureaucrat said that her actions were unquestionably Islamophobic, which is kind of a slander. The university president in response said, “Academic freedom is fine, but we also have to take care of our students’ feelings and they have to be balanced.” And that was a pretty grave incident and if you could multiply... Allow that kind of thing to happen routinely we’d be in big trouble.

Paul Rand: Is there a greater sense of attacks and repression on freedom of expression right now than historically there has been?

Tom Ginsburg: There certainly is. fire.org keeps track of these things and Fire is a free expression organization based in Philadelphia, which is actually actively defends in litigation academics who’ve been treated unjustly. According to their data, we’ve had more professors fired or not renewed, suffer employment sanctions for their speech in class in the last few years than in the entire McCarthy period in this country.

And I would think of the threats as being threefold. You have donors who give a lot of money and they say, “This person’s too critical of X or Y, we’d like them to be not renewed. We don’t think you should make the hire.” Ken Roth of Human Rights Watch was supposed to be appointed to the Kennedy School last fall and the dean declined to make the appointment, which he was supposed to do, apparently because of some pressure from some pro-Israel donors. Ken Roth has been critical of the Israeli government’s policies. We also of course have this threat now from governments, and this was the McCarthy period threat, but we’re announcing it again in the anti-CRT laws, the laws in many of the red states, which-

Paul Rand: The Critical Race Theory,

Tom Ginsburg: Yeah, exactly. Try to prohibit the teaching of Critical Race Theory and other divisive concepts, which is a very amorphous kind of thing. In Florida, Ron DeSantis passed something called the Stop Woke Act. Stop wrongs to our kids and employees, which sought to prevent discussion of positive discrimination to correct historical injustice, discuss certain racial concepts that would make one racial group feel bad. It was a very broadly worded statute. Anyway, government is now a major threat. Obviously it’s the major threat of our time. It’s the biggest use of governmental action against speech I think since the McCarthy period where you actually have state legislatures kind of creating this boogeyman in Critical Race Theory and saying no divisive concepts, which really goes to of course the history of race in America, very sensitive and important thing that we have to be talking about.

So I do think it’s a major threat, but on the other hand, I think most of these laws are pretty patently unconstitutional. But again, as long as they’re on the books, they’re going to have a big chilling effect and that’s really dangerous. The harm is already occurring.

I say a third threat is what I was referring to before is actually the society itself. Students who don’t want to confront an idea that might make them feel uncomfortable, that they might disagree with. There’s kind of an interesting parallel between DeSantis’ language and the left wing language about harm and uncomfort. “I don’t want to feel any uncomfort in my educational process.” They both are tying into some deeper thing in the culture, the deeper thing is problematic.We have to address it, but you can’t do it by restricting free inquiry and expression.

Paul Rand: When it comes to restricting free expression at universities, debates mostly circle around professors and speakers invited to campus. But you’d be wrong to think we can just lump these two groups together. For professors, there is more than just freedom of expression at play. There’s also academic freedom.

Ginsburg says one of the most important people to speak to if you want to understand academic freedom is Robert Post from Yale Law School. He’s one of the world’s leading scholars on this topic, and Ginsburg interviewed him on his podcast recently.

Robert Post: Freedom of speech, at least in the United States, is a personal right. It’s my individual right as a speaker or as a listener. Academic freedom is not a personal right, it’s a corporate right of the body of the faculty. [inaudible 00:10:46] First Amendment there’s a million different rules. Consider three basic rules of the First Amendment. No content discrimination or viewpoint discrimination. All ideas are equal, no idea’s false for purposes of the First Amendment. And third, no compelled speech. So how do they fare in the university? Well consider students. In my class, and if I’m teaching First Amendment, my students will tell you, you can’t just discuss the Australian Open. You have to discuss what’s on the table: content discrimination. Are all ideas equal? No. My job is to teach them better from worse ideas, and we call that grades. What about compelled speech? We call that examinations.

What about for faculty? Well, I get hired because I’m in a certain area. Are all ideas equal? No, I give tenure or not based on the quality of the ideas. The whole point of tenure is to assess quality. So all content discrimination exactly contradicts the second principle I gave you. And what about compelled speech? Well, we call that in the academy publish or perish.

So we violate blatantly every rule of the First Amendment. We do that in public universities, we do that in private universities. We couldn’t be a university if we didn’t. Why? Because our job as a university is first to advance knowledge, which means distinguishing what’s true from what’s false. The axis of academic freedom is along the idea of competence versus incompetence. One can be sanctioned in a university if one is incompetent and one is free from sanction if one is competent. And the judgment about competence has to be made by those who are already competent, which means it can’t be made by trustees, it can’t be made by alumni, it can’t be made by the public, it can’t be made by the church. It has to be made by peer faculty who are presumably the only ones to judge competence.

What the AUP says about that is unless you define freedom of education in a way that allows the freedom of the professor to speak their mind freely on the subject matter competently in the classroom, you may say that you’re a university, but you’re not really a university.

Tom Ginsburg: It’s a very different thing than freedom of speech. And they’re often conflated. If I want to go and teach a human rights class, the university can’t fire me because I teach it one way or another. But if I go into that human rights class and I’m teaching nuclear physics, well then eventually if I insist on teaching nuclear physics, they can fire me because I’m not doing the job I was hired to do. But as long as I’m doing something that someone in my discipline would recognize as being the teaching that I was hired to do, then I enjoy academic freedom.

Now there’s a question about like, well, are there some topics that shouldn’t be open to discussion? I obviously think that there are. There’s some things which are so settled that they shouldn’t be introduced into a classroom. Phrenology. The idea that racially determined skull size and shape actually meant something. That was an idea that universities came up with. And the only reason we were able to reject that idea is because we had an environment of open inquiry and it can be disproved as a racist theory.

But it’s a dangerous line to draw because we saw with the COVID thing, there were these sort of dissident scientists, Jay Bhattacharya at Stanford for example. They were saying, “Yeah, maybe we don’t need to mask,” or, “shutting down schools is bad idea.” I think in retrospect, the presence of those dissident scientists was very valuable. And so you always have to be concerned with when there’s an orthodoxy being imposed.

Paul Rand: Professors have this ability to speak about what they want, but then in the same breath, where do the students’ rights come in on what they ought to be exposed to or not exposed to and whether it creates some sensitivities for them or worse than just sensitivities?

Tom Ginsburg: In our era, of course where this arises the most is the demand that some students have for safety. And we’re in a dangerous moment. It’s an anxious age and I understand that legitimate demand, if you will, for a comfortable place or a safe place to learn. I tend not to use that language of safety or even comfort because I think learning is often uncomfortable. How else do we change our minds unless we’re confronted with an idea that we disagree with? And that’s not always a good feeling to give up something you’ve believed a long time, but it’s part of the process of education is doing that. So I do think we have an obligation to allow students to go where they’re learning takes them, and we should certainly strive for constructing an environment in which that can take place. Part of that environment must include being confronted with ideas you don’t like.

Paul Rand: But what about people who are coming from outside the community, how to think about invited speakers and free expression plus the University of Chicago’s unique history with free expression after the break.

If you’re getting a lot out of the important research shared on Big Brains, there’s another University of Chicago podcast network show you should check out. It’s called Entitled and it’s about human rights. Co-hosted by lawyers and New Chicago Law School professors Claudia Flores and Tom Ginsburg, Entitled explores the stories around why rights matter and what’s the matter with rights.

Professor speech is one issue, but what about speakers who don’t have the contract of academic freedom? Controversial guests invited by students and departments either being disinvited by administrations or protestors creating enough disruption to get the event canceled has become one of the central issues of free expression.

Tom Ginsburg: So first of all, legally speaking, the context is really different if you’re a private university or a public university. A public university governed by the First Amendment cannot restrict speakers on the basis of their viewpoint. But a private university can, yet we tend to act as if we are governed by the First Amendment, certainly at the University of Chicago. Because of course we want an open environment. This is complicated in recent years by the presence of provocateurs who seek to come to universities in order to get a big reaction, protest maybe, so that they can claim to be victims and enhance their number of Twitter followers and things like this. And so we do have people invited to universities who don’t really have any academic idea, but the fact is because we have adopted First Amendment like rules, we accept that. So we accept that their invitations are valid.

So I think the general principle is a decentralized community means that any legitimate student group can invite anyone they want, and any other student group that opposes that can protest that person. But you can’t disrupt the speaker. I mean that’s basically what it comes down to.

The other thing that one sometimes hears is that, well, these ideas are harmful and they’re causing X or Y real problem in the world so they have to be shut down. From my point of view, that’s extremely patronizing to the potential hearer of the speaker. It’s to say that if someone was to hear, I don’t know, Steve Bannon was invited here a few years ago and there was some protests about it. He ended up not coming. But the protests were saying, “Oh my God, his ideas are so dangerous.” It’s to suggest that anyone who listened to this guy would automatically be converted to his side, as if his position is persuasive.

Paul Rand: And President Alivisatos agrees.

Paul Alivisatos: I would say if somebody has been invited to come and speak to the university, we will ensure that they are able to come and speak to the university. The only limitations that we have are, for example, one group cannot prevent another group from speaking, like physically prevent them from speaking. And of course there are some protections around issues, for example of let’s say if speech is used to specifically single out an individual in the forum, that’s a kind of harassment. Or if it’s involved in certain other kinds of limitations that are conventional around First Amendment rights and society at large. Of course there are certain limitations, but this university is one that prides itself and has consistently always made itself open to all different points of view for speakers to come. And that will always be our approach.

Paul Rand: Well, should speech really never be constrained. How do you know when and where to draw the lines?

Tom Ginsburg: I think the First Amendment’s really interesting. Even though it doesn’t directly apply to our university, there’s kind of an analogy that we use here. Because the reason we have the First Amendment is that we don’t trust whoever it is that would be in charge to get it right in terms of what speech is okay and whatnot. And we really think that they’re likely to suppress the speech which criticizes them and such. And so that often means that we have lots of very bad speech out there, which in an ideal world you wouldn’t want any hate speech, you wouldn’t want... But we have to tolerate that as kind of the First Amendment idea, because we really don’t trust government to get it right. I think there’s an analogy to that in the university.

Paul Rand: On his podcast Entitled, Ginsburg spoke with Ben Wizner, the director of the Speech, Privacy and Technology Project at the American Civil Liberties Union. And Wizner points out maybe the most important point for understanding why constraining speech on college campuses is dangerous.

Ben Wizner: Someone always has to be the decision maker. And there’s this sort of serene sense among some students that it’s obvious which ideas should be platformed and which ones should be de-platformed. But it always strikes me as odd that those students are confident that if we assigned that role to some gatekeeper, the outcomes would be the ones that they desire, at least at most colleges and universities around the country. And that even if it came out the way that they like at Berkeley, that’s not where most people experience college life in this country. So someone is going to have to be the one who’s saying, “These are the ideas that can be platformed. These are the ideas that cannot be platformed,” and who is that entity going to be and when has it ever turned out well when we have assigned that power to some commissar to decide which ideas are acceptable to be spoken and which ideas are not acceptable to be spoken?

Tom Ginsburg: The other point that I think a lot of critics of free expression forget is that the political wheel always turns. If the universities are whatever, 80% left-leaning, the university faculties are 80% left-leaning, they might say, “Well, this is the one institution we still control in society. We won’t allow anyone who violates the things we believe in on campus.” But the problem with that is when the political wheel turns, which it will, the very same tools could be used against your side. And that’s the enduring lesson of the First Amendment. And I think something we just have to continually remind people of because I think we’re at a moment where they’ve sort of forgotten some of that history.

Ben Wizner: When I think about writing rules for these kinds of considerations, I want to think about places where progressives, liberals, racial minorities are going to have less power in these kinds of debates, not necessarily where they’re going to have more power in these kinds of debates as they do at more liberal institutions. And I think overall, if you look at all of these kinds of settings, that having a more neutral role for the powers that be when it comes to acceptable viewpoints is the better way.

Paul Rand: But there’s another argument you often hear, that when it comes to decision makers, they have been white straight men for most of human history. Isn’t it important to correct that historical imbalance by giving historically marginalized groups more power to constrain speech they view as dangerous?

Tom Ginsburg: Thinking about this from the perspective of human rights, I can’t think of another human right for which some people would make the argument, “Well, some people have not enjoyed this right, therefore no one should enjoy it.”

Ben Wizner: There is no doubt when it comes to free speech rights, they have not existed equally or equitably throughout the history of this country, and that people with power and privilege have enjoyed the fruits of free speech more than people with less power and who have been more marginalized. I happen to think that’s true of every constitutional right. It’s certainly true of the Fourth Amendment, that people who live in wealthy communities have been less subject to police intrusions like stop and frisk than people who live in poor communities. We generally don’t use that as a critique of the Fourth Amendment. We use it as a critique of inequality. We don’t say that because a constitutional right has been experienced differently by different communities, somehow the value of that constitutional right is implicated. What we say is it should be distributed more equitably.

Paul Rand: It may seem like these debates started in the early 2000s, but arguments about free expression at universities have really been around since the earliest days of their founding. And the University of Chicago has played a unique role in that history since the beginning.

Tom Ginsburg: I’ve been recently researching this and I’ve been going back and looking at the historical documents and it’s really remarkable. I’ve learned so much about how the commitments that we now think of as the Chicago principles and Chicago ideas about free expression were really present at the very founding of the university back in 1899.

Paul Alivisatos: All the way back in 1899, William Rainey Harper, our first president, said, “The greatest single element necessary for the installation of the academic spirit is the feeling of security from interference.” And he said that this principle can neither now nor at any time in the future be called into question.

Tom Ginsburg: Of course, like any institution, we’ve been challenged over the years. The McCarthy period, the thirties was a lot of anti-communist sentiment. And the sixties of course. And in every era, the university leaders have really stood up and made great statements about freedom of expression.

Paul Alivisatos: To give you a very famous example, in 1935 the Illinois legislature established a committee to investigate the University of Chicago, alleging there had been indoctrination with respect to communism. And at that time, Hutchins spoke forcefully in defense of the university.

Tom Ginsburg: The faculty senate adopted a rule says, “We don’t care if there are communists here, we want good professors. And if there are other people who are being fired for being communists, we want to look at them and hire them here.”

Paul Alivisatos: Going back again though to Harper, if I may, one thing, which he said was, “The university as such does not appear as a disputant on either side upon any public question. The utterances offered by any faculty member are registered to that person’s opinions only.” So in a sense, Harper already brought us to the idea of the Calvin Report, which was a report that was created during the Vietnam War. President Beadle at that time in 1967 asked for the creation of a report from the faculty asking the question, what should the university’s role be in political and social action? And an all-star group of faculty, very thoughtful group, came back saying essentially what Harper had said, which is the university is a community of scholars that are truth seeking. And each one of those scholars has a voice, an opinion. They’re part of the truth seeking dialogue inside the university, but the university itself as an institution does not take positions on issues of the day.

Paul Rand: But why is it so important for the university to remain neutral? Shouldn’t universities themselves also participate in the culture of free expression?

Paul Alivisatos: If the university, for instance, a president like myself took such a position, it automatically acts to constrain the range of opinions that are open to the full range of the faculty.

Tom Ginsburg: If the university is going to speak about every foreign conflict, well, it can never speak about all of them so it creates almost like an incentive for internal lobbying, for people to waste their time getting the university president to issue some bland statement about a conflict in one country or another. And that’s wasted time from making progress on real issues of the day.

Paul Alivisatos: Periodically it might be the case that, for example, some entity tries to constrain in some way the functioning of the university. And at that point, it’s essential that the administration defend the university. In the 2010s again, there was, and more recently, there have been situations where aspects of the ability of scholars to travel to the university have been affected.

Tom Ginsburg: So a good example would be in recent years when there were restrictions on immigration, very draconian restrictions on immigration in the early part of the Trump years. That really affected our university’s ability to operate. Our students couldn’t get back from their vacations. We couldn’t hire new faculty from foreign countries because the visa process ground to a halt. And that really was a fundamental challenge. So President Zimmer at the time did speak out about that.

Paul Alivisatos: And that’s an occasion when President Zimmer spoke powerfully in favor of the ability of scholars to move across borders, that we not act to restrict immigration. So again, engaging on one of the issues of the day, but engaging on it specifically because he deemed it essential.

Paul Rand: At the time we are getting ready to release this podcast, the University of Chicago is launching a new forum. And I wonder if you could talk about what this forum is and where the idea came from and why you were selected to lead it?

Tom Ginsburg: Yes. The forum on free inquiry and expression is our generation’s contribution to the Chicago tradition. And in particular, given the challenges of our era, we think it’s really important to double down on free expression because there’s so many forces working against it in society.

To really institutionalize a culture of free expression requires getting everyone to be comfortable speaking, inculcating values and habits, and providing fora and opportunities for people to debate controversial ideas. It requires orienting everybody towards free expression as a set of commitments or towards academic freedom as well. Because in my experience, people don’t really have a good understanding. Even faculty members don’t have a good understanding about what academic freedom is. And I think we can do a lot to deepen a culture by simply providing opportunities for people to learn about those things and to debate them and talk about them themselves. And so a very big focus on deepening our own culture of free expression.

But I also think that we hope to create public goods, if I can use the term, for other institutions of higher education in our country and indeed around the world to deepen their own commitment to free expression and to really find ways to advance it. Because I certainly know from my work around the world, academic freedom is very, very fragile. It’s pretty easy to corrode if you have a determined government that wants to do so. And we’ve seen it happen in many countries in recent years. I think there’s great opportunity for us to work together in mutual support with scholars in other countries as well as around this country when these challenges arise.

And probably in our era, what we do need to do is to provide environments, actively create environments in which students who come from different political persuasions can get together. And we need to model dialogue across difference, because otherwise, I think we’re in an era where people tend to stick with their own group and they serve as an echo chamber. That’s certainly what the social media does to all of us. And so trying to disrupt that somehow. And again, I keep coming back to this idea that it takes active work. It’s just not going to happen on its own.

So I think universities do have an obligation to make that happen, and they shouldn’t be ideologically unified places. That goes against the very idea of diversity, that you need in order to make progress on social problems you need diverse groups. You need people from all kinds of different backgrounds and experiences, and you need people with different ideas in order to make progress. So I think all of this is fundamental. Again, going back to the 1890s, you can find language about this idea that we need to be a democratic institution open to everybody in order to make progress. I think that’s the soul of the university.

Matt Hodapp: Big Brains is a production of the University of Chicago Podcast Network. We’re sponsored by the Graham School. Are you a lifelong learner with an insatiable curiosity? Access more than 50 open enrollment courses every quarter. Learn more at graham.uchicago.edu/bigbrains. If you like what you heard on our podcast, please leave us a rating and review.