Cancel Culture and Higher Education

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, October 5, we discuss “Cancel Culture and Higher Education.” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have some excellent speakers who will be moderated by Mr. Ken Marcus, whom I’ll introduce very briefly. Ken Marcus is the Founder and Chairman of the Louis D. Brandeis Center for Human Rights Under Law, the former Assistant U.S. Secretary of Education for Civil Rights, and he’s also the Chairman of The Federalist Society’s Civil Rights Practice Group, which is co-sponsoring today’s event.

 

      After our speakers give opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and you’re welcome to enter those questions at any time during this afternoon’s program.

 

      With that, thank you for being with us today. Ken, the floor is yours.

     

Hon. Kenneth Marcus:  Thank you, Evelyn, both for the introduction and for everything that you do. Welcome, everybody, to what will be the first in a series of presentations on different aspects of cancel culture. Today, we will look at cancel culture in academia. Other similar events will be put on in the future. On behalf of the Civil Rights Practice Group of The Federalist Society, we welcome our guests, Charles Murray and J.C. Hallman, as well as our audience members.

 

      Cancel culture is very much in the news and in our culture nowadays. You can read about it in countless articles and newspapers and magazines. It is central to the story arc of the much talked about Netflix program The Chair. It is very much the topic of the new novel by philosopher novelist Andy Pessin on Nevergreen.

 

      It is certainly something that is very much in the air today, but what is it? What is cancel culture? Is cancel culture an appropriate term to use? Should we be talking about something else, like the culture of intimidation, or use other terms? Is it even appropriate to talk about cancel culture, or does this amount to an exaggeration? Questions that we have before us, has American education gone too far or in the wrong direction in how it sanctions certain disfavored conduct? Are the correct transgressions being punished or not? Is higher education now more intolerant than it was, or is it just intolerant about different things? So on and so forth.

 

      Yesterday, in National Review online, my former deputy William Trachman had a piece on Title IX and the question about what will the Biden administration do about the Trump administration’s Title IX regulations. And it reminds me, because I was very much involved in that process, that much of what we heard about from the tens of thousands of comments had to do with the question of cancel culture. That is to say, while Title IX is often used to deal with horrific issues like sexual assault and rape, on the one hand, there was the question about whether certain minor incidents like off-color jokes were being inappropriately punished.

 

      And then there is the procedural question about whether due process is used and what level of due process is necessary, and whether we have fairness in the system by which either legally or culturally we deal with disfavored conduct. There are lots of issues, both legal issues, policy issues, questions about how higher education should conduct itself, as well as how it should be regulated and governed.

 

      I’m very happy to have two excellent experts on this topic. We have J.C. Hallman, who is an acclaimed author who wrote a piece entitled “In Defense of Cancel Culture” following the publication of Harper magazine’s letter on Justice and Open Debate. Also, Dr. Charles Murray, the F. A. Hayek Chair Emeritus in Cultural Studies at the American Enterprise Institute, who experienced academic and social backlash, notably after publication of his book The Bell Curve. So we have certainly a topic which is as central to public discourse today as anything, and two speakers who have thought much about that.

 

      I’m going to start with J.C. Hallman because he has written that important piece, “In Defense of Cancel Culture,” and because he has generated quite a lot of discussion around the question of is there a cancel culture, should there be a cancel culture, should we defend what is known as cancel culture? J.C. Hallman, we turn to you, with our thanks.

 

J.C. Hallman:  Thanks very much. I just got asked a few minutes ago to open this up with about eight or nine minutes, so I’m going to be editing something on the fly here. And it’s going to speak a little bit more broadly than just cancel culture in academia. Ultimately, I think that the phenomenon is much bigger than what we see in academia, so I suspect that after this, we’ll zoom down into the question of how this phenomenon is playing out in higher education.

 

      In 1796, George Washington gave his farewell address. The Bill of Rights had passed just five years earlier in 1791. And Washington had been president for the entire time the Bill of Rights was debated, so we can assume that he had some insight into what the goals of the First Amendment were at the time. It’s interesting that Washington’s farewell address speaks to the problem of people talking about breaking up the Union, what’s now known as seditious speech. It’s a long passage and worth reading in full, but a section at the end of it speaks to our moment right now.

 

      Washington said that there should be a discountenancing of whoever may suggest even just a suspicion that the Union can be abandoned and an indignant frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, discountenancing and indignant frowning. Discountenancing -- your countenance is your face, so discountenancing is like 18th century speak for ripping your face off.

 

      And all of this, I think, sounds pretty familiar. Washington is not calling for censorship. He’s not saying that the government should stop seditious speech. Instead, he’s calling on citizens to react to it with passion and vigor. He’s calling for what we would now call cancel culture.

 

      Notably, the first sedition laws passed just two years after that in 1798 with the support of the Federalists, so that might be relevant here. That law only lasted a few years, but I think it was -- the conversations were already happening back then, so to think that what we’re now calling cancel culture is a new phenomenon is not particularly accurate.

 

      A lot of the debate over cancel culture hinges on the idea of civil discourse and reasonable argument. But what if that’s totally misguided? Not long ago, The Baffler published a piece by James Pogue called “On the Rudeness of Mobs,” which is a kind of pocket history of this idea, particularly for people who want to be in league with the original ideas of the country. Pogue paints a very telling portrait of the atmosphere of America at the time of the Revolution, and he debunks the idea that somehow American discourse has become more crass over time. Mob rule and cancel culture are what made our Revolution, Pogue writes, which is to say that they made the America we still, for now, live in.

 

      There’s been a lot of talk in America about riots in the past year. First, there was Minneapolis, and I was there in the immediate aftermath. I walked out into it late one night well after curfew, and I stumbled across a piece of graffiti on the now-infamous Lake Street. Someone had written out Martin Luther King’s famous quote, “A riot is the language of the unheard.”

 

      And then there’s January 6, the attack on the U.S. Capitol. And it’s been vogue to call it a mob or a riot. In fact, it was neither. A riot is a spontaneous uprising. A mob is a flash gathering of angry people who have no plan. What happened on January 6 was not spontaneous, and it was made up of people who had arms and bombs and a plan. It does a disservice to riots to call what happened on January 6 a riot.

 

      Cancel culture is most definitely the language of the unheard, but it’s an exaggeration to say that it’s anything like mob violence. And this kind of hyperbole has been characteristic of those who have spoken against cancel culture. Even the Supreme Court didn’t like that metaphor. They have a more genteel term for it, counterspeech. This begins to speak to what cancel culture actually is. Is it people participating in shaming campaigns with counterspeech, or is it people in authority who are afraid of speaking, of publishing things because of shaming campaigns?

 

      If it’s the former, then there’s really no debate, at least not in the United States. The Supreme Court has ruled that caustic, even false speech is not only protected speech but serves as an important check on speech that is universally regarded as bad. You cannot have a truly robust, expansive interpretation of our First Amendment unless you also allow caustic counterspeech that acts as a check on bad speech.

 

      It’s been said by Elena Kagan and others that speech in recent years has become weaponized, that what used to be a shield for people who needed protection has been turned into a sword wielded by entrenched people to further protect their entrenched positions. If that’s true, then it should be no surprise that the unheard are now starting to fight back and that we’re seeing vicious, ugly battles. But regardless, as far as the legality of it goes, it’s legal. The juries and the Court have spoken. Cancel culture is not a threat to free speech; it’s an example of it.

 

      If cancel culture is not shaming campaigns, but rather either direct responses to cancelation efforts or the preemptive choice to not publish or broadcast or teach something that might result in a cancelation effort, then what has to be acknowledged is that this is the free market of ideas. Board members, university administrators, television producers, newspaper publishers, they are making market-based decisions responding to what they see as customer input. These are businesspeople. Telling them not to listen to cancel culture is exactly like telling a businessperson not to listen to their customers. Why would they do that? Regardless, this is how the free market of ideas is supposed to work; free, unregulated, probably rough and tumble.

 

      So if we conclude that something needs to be changed, then what must be acknowledged is that the problem is not cancel culture; it’s capitalism. Ultimately, all of this boils down to two very straightforward things. First, cancel culture or counterspeech is undeniably free speech. You have the right to say what you want to say, but you don’t have the right to avoid repercussions for what you say. A world that proposes canceling cancel culture is in favor of a world with less free speech in it.

 

      Second, it’s not simply that cancel culture is permitted. It’s that cancel culture serves a critical function. If you’re going to have a robust, expansive, negative interpretation of the First Amendment in administering free speech in the United States, then you must have cancel culture or something like it because it’s the only check left on bad speech. George Washington knew it, and the United States Supreme Court knows it. Thanks.

 

Hon. Kenneth Marcus:  Thank you, J.C., for that provocative set of remarks. By way of clarification, I should say that while the Federalists did support the Alien and Sedition Act, The Federalist Society did not take a position one way or the other simply because The Federalist Society does not take positions on pending legislation. I believe The Federalist Society did have both a webinar and a podcast in which both sides were given an opportunity to speak. It was considered to be on of the early successful uses of that technology.

 

      Be that as it may, Charles Murray, what say you?

 

Dr. Charles Murray:  Well, it’s a good thing that we’re limiting this to academia because J.C. and I would not have very much to argue about if we’re talking about outside academia. I’m sure we could find something to argue about, but I basically agree with the proposition that if you’re going to have a robust public dialogue, you’re going to have angry, nasty things said. And I also accept the idea that if people are unhappy with a producer of a product or service and they want to boycott it, that’s part of being free.

 

      Within academia, I guess that I am a disciple of Jonathan Haidt. Academia is a special place, and Haidt has made the case that the telos of the university, it’s function, is the search for truth, and that you can’t serve two masters, that you cannot have a campus that takes the promotion of social justice as a co-equal goal with the search for truth. You’ve got to choose one or the other. And I think that a lot of my own views about what’s going on in universities is that it has betrayed that fundamental goal of the university.

 

      Let me give an example from my own experience of what I consider to be appropriate within a university and what is inappropriate within a university. I was protested a lot right after The Bell Curve, and then I was -- over a period of years, I got almost rehabilitated. And then it was about 2015, I guess 2016, that I started getting protested again.

 

      But after The Bell Curve, those kinds of protests -- it was almost like a Kabuki dance in which it had been negotiated before my speech. So I would go in. As I started to speak, there would be a set of students, oftentimes who had signs, who would sometimes stand and sometimes briefly chant a few things. In one case, they turned their back to me for half an hour. But in most cases, they would make a short demonstration, and then they would either subside and listen to what I had to say, or they would walk out. And as far as I’m concerned, that’s an appropriate form of protest within a university when you don’t like a speaker. But they didn’t stop me from saying what I had to say.

 

      Whereas in the spring of -- actually it was the spring of 2017 that Middlebury happened, and it was followed by similar kinds of things, minus the violence, at Indiana and several other places. I was not allowed to speak. Or it was, in the case of Middlebury, just shouted down. In the case of other places, they had to move me to a room where most of the people wouldn’t fit. And that I consider inappropriate because that is taking -- it’s not just the use of force. Forget the Middlebury case, which was extreme. That was unlawful, felonious behavior after the speech when we were attacked. But forget that.

 

      Just stick with shouting people down, or intimidating campuses from inviting certain kinds of speakers to come to campus. In those cases, I think that the university, the academia has as its special function an exposure to different ideas where it’s okay to enforce ground rules. It is not okay to say to one side, “You are on the side of the angels, and therefore, we will repress some form of speech.” So I guess that would be one thing that maybe J.C. and I can argue about. At what point in the university setting are you interfering with the function of the university?

 

      But let me just throw out a couple of other things that I hope we can get into. The extreme examples of the kind I just described that happened to myself, I don’t think are the main problem in universities. And I would like to talk more about an environment of intimidation, of intellectual intimidation, both formal and informal, within universities that I think is much more widespread, that I think has had incredibly corrupting and limiting influences both on the kind of intellectual inquiry that people conduct and on the penalties that are exacted on people who say the wrong things.

 

      More specifically, everybody knows or at least -- not everybody, but everybody who’s bothering to watch this podcast probably is familiar with the proportions of faculty who identify as conservative versus liberal. But I’ll just take one of the studies with the largest sample size, over 7,000 faculty members at 40 universities, and it has a nice, simple, objective measure which is party registration. And this is published in the Econ Journal Watch earlier this year, I think.

 

      Anyway, overall, the ratio of those registered Democrat versus Republican was 11.5 to 1. Economics is the least unbalanced. In the humanities and social sciences, at 4.5 to 1. History is at 33.5 to 1. They don’t have sociology in the numbers I saw, but sociology is going to be at least as high as history.

 

      And Jonathan Haidt himself was led to write The Righteous Mind and other books by observing in social psychology when he was at the national convention, there was virtually no one at the national convention who self-identified as a conservative. Why is this bad? Well, if you think the liberals are right on everything and the conservatives are wrong on everything, then I guess it’s not a problem. But in fact, it’s much more complicated than that.

 

      Here’s the statement of I think the iceberg that is beneath the surface that has poking out at the top things like Middlebury and the other kinds of extreme examples. The great iceberg is it’s punishing on university campuses to take certain positions. And by punishing, I don’t mean necessarily that you’re going to be petitioned -- that students will petition to have you removed.

 

      Let’s say that you are going to stake out -- you want to write an article about the role of genetics in, well, the thing I’m the most infamous for, notorious for, is the role of genetics in IQ. Suppose you want to write about that, and you’re writing a scholarly article that is moderate in tone and that sticks well within the envelope of what is securely documented.

 

      It doesn’t make any difference. If you do that, maybe not all of your colleagues will be upset with you, but there will be, especially at elite universities, you know there will be a small group who will come after you. They’ll come after you in the campus newspaper. They will talk about you. You will be called names. And even if many of your colleagues say, “No, no, we stuck up for you,” how many professors want to live in a campus where they are seen as a bad guy and where they are being harassed in some cases, harassed in classrooms in some cases.

 

      But even short of that, it sounds silly to say they don’t get invited to dinner parties, but you know what, it’s no fun being socially isolated. When I was writing The Bell Curve, which was a long time ago, early 1990s, when things weren’t nearly as polarized as they are now, at Harvard University, which had at that time a really good track record for being intellectual, integrity, and freedom, Dick Herrnstein had to carve out a little world for himself, the little world that consisted of him, and Marty Feldstein, and James Q. Wilson, and Harvey Mansfield, and a couple of others who were moderate or conservative professors.

 

      And they were their social friends because they were identified as conservatives in the Harvard campus, and they didn’t get invited to parties. They didn’t get put in certain kinds of committees.

 

J.C. Hallman:  Charles, Forgive me for interrupting, but --

 

Dr. Charles Murray:  -- Sure, go ahead. I’ve gone on long enough.

 

J.C. Hallman:  Are we really leaping from talking about cancel culture to the pain of not getting invited to a party? That just seems -- I thought we were talking about cancel culture where there are some things -- with very serious things at stake.

 

      But if we’re talking about the difficulty that a conservative professor has because their social life gets tough because they make their career based on kicking hornets’ nests, and they’re mad that the hornets now have an opportunity to react, well, I don’t care. I don’t care if people don’t get invited to parties and that that makes their lives miserable. I don't think that is what is meant by having a robust, free market of ideas.

 

Dr. Charles Murray:  Okay. Well, let’s think in terms of a continuum. At one end of the continuum is Allison Stanger getting a concussion and torn neck tendons because she had the temerity to appear in the same platform with me. At the other end of the continuum is on a college campus, J.C., it’s not, “Gee, I wish I could have gone to that dinner party.” It means that you know you are excluded socially from the life of that town, which is especially true if you’re not talking about NYU, you’re talking about a small college.

 

      All of these things are different levels of intimidation, and if you say at the end of the continuum which talks about the social life, that that’s at the mild end, I entirely agree with you. If you say that’s irrelevant, then I think you are underestimating the degree to which -- if you were a college professor, an important part of your life is being part of the fabric of life in your university. And just a step up from not getting invited to dinner parties is not getting put on, let’s say, the committees that interview candidates for new professorships, and a step up from that is people speaking out against you as being a bad person, and all of this together has real effects on the things that people choose to study -- yeah, go ahead.

 

J.C. Hallman:  So I think what you’re saying is, well, things aren’t so bad right now, but if we go a step up and a step up and a step up, that it’ll get bad. And I would object to that.

 

      I did the Oxford Union debates back in February, I mentioned. And there was a gentleman on those debates who ran an organization -- I believe he ran an organization saying that -- or that investigated children who’d been abused. Seemed like really honorable, noble work. He made a criticism of Black Lives Matter, lost his job for several months, got his job back, his board quit entirely, and was then invited to do the Oxford Union debates, and said that this indicated that his life had been canceled forever.

 

      And another speaker in the same debates said that getting canceled was like having a nuclear bomb dropped on him. He was a student at Oxford. He said it twice. Maybe it means two nuclear bombs. I don't know.

 

      You, in your book, your most recent book, you did not speak about an atmosphere of intellectual intimidation. You looked at these shaming campaigns or what the students are doing, and you likened it to the Red Guards of the cultural revolution, the wing of Mao who had been in charge of the country for 17 years at that point, committing mass murder. And you’re saying that a bunch of 20-year-olds tweeting is like that.

 

      So this idea that we’re -- well, it’s bad now, but we’re going to take a step up, a step up, a step up, it’s always that same kind of Chicken Little argument that betrays, I think, the weakness of the belief behind it because we’re not there. We’re not even close to there. And you yourself are saying, well, if it gets a step worse, a step worse, a step worse -- but that’s not where it is.

 

Dr. Charles Murray:  No, no, no. I’m not talking about --

 

J.C. Hallman:  -- Let me address that first point you made about the woman who was injured --

 

Hon. Kenneth Marcus:  -- I’m sorry. Let me give J.C. just another moment on the other point, but then let’s give Charles a full opportunity to respond to what you just said.

 

J.C. Hallman:  Sure. Just that the woman who was injured at your talk, anybody who commits any kind of criminal behavior should immediately be prosecuted, arrested and prosecuted. And so I think that I agree with you that that’s unconscionable.

 

Dr. Charles Murray:  I’m not talking about a vertical hierarchy within academia. And I’ve prefaced all my remarks saying I think academia is a special case, which I was not limiting it to in Facing Reality, the book you alluded to.

 

      I’m talking about a landscape in which a whole bunch of things are going on at the same time. You are a young faculty member. You don’t have tenure. You’re a lecturer. And so you are watching what’s going to other faculty members. Part of what you observe are the kinds of trivial social sanctions that you are saying, so what, but they’re also seeing that certain kinds of topics that some professors write about get them into trouble. You have faculty advisors who say to you, you really should think hard about going there.

 

      I’m thinking, by the way, of specific cases. I’m thinking of—okay, they’re anecdotes, they’re true cases—a young neuroscientist scholar who decided he wanted to look into sex differences in neuroscience and a senior faculty advisor saying don’t go there. And I think that if we have in the audience people who aren’t on college campuses, they all could give anecdotes of that kind because it is well known within the college of here are the kinds of topics you better be careful of.

 

      Another anecdote: I have a friend and colleague who is a highly respected --

 

J.C. Hallman:  -- Charles, you gave an anecdote.

 

Dr. Charles Murray:  I’m sorry. Just one more anecdote. Now we’re getting to the nub. He is a star in genetics research, an acknowledged star. He has tenure. He has decided not to do a very important research project, what would be a groundbreaking research project, because it is simply too dangerous. Not dangerous in the sense of he’s worried about a riot. He’s in danger of having his career derailed permanently, of being labeled permanently, and that is not trivial.

 

J.C. Hallman:  I’m going to point out that you have had some of these events happen. It’s on YouTube. Anybody who wants to watch it can go see it. I’ve had efforts with myself about my own work, so it’s not as though I haven’t experienced that on a couple of different occasions. I expect if I take on a controversial subject that I’m going to have to account for that. That doesn’t surprise me.

 

      I think that when you talk about problems or you talk about danger, I think that you’re engaging in exactly that kind of hyperbole that I’m talking about because the examples that you cite in your book are all examples in which a professor did something that got them in trouble, that put them in danger, but they were quickly exonerated by their schools.

 

      The case of the professor who used a Chinese word that sounded like a racial slur, there were two weeks of investigation before the school came to his defense. And so, sure, there was an investigation. There was some media attention. There was some drama. But in terms of there being danger or problems, again, that’s just Chicken Little talk.

 

      It should not surprise us in a time of radically changing values and radically changing digital technologies that we might all wind up having to think more carefully about the things that we say, whether it’s publicly inside of the academia or outside. It just isn’t a surprise, and I don’t understand why people seem so shocked that things that floated for them for 30 or 40 years no longer do. The world is changing. The sky is not falling.

 

Dr. Charles Murray:  I would have no problem whatsoever if I wrote on a topic—I have written on topics—in which I had to deal with other people writing counter scholarly articles making the case that I’m wrong. And they make the case in unpleasant terms, maybe they don’t, but what they are doing is they are raising scholarly objection to what I do.

 

      Point number one is danger does not mean fear of getting hit in the head. Danger also means career danger. It means --

 

J.C. Hallman:  -- But maybe danger is not the right word.

 

Dr. Charles Murray:  Just let me finish now. I’m not talking about opinions that you can say, oh, well, 30 or 40 years ago, you could get away with this, but they were evil then, they’re evil now, and the difference is, oh, now you’re having people pointing out they’re evil. No. I’m talking about legitimate, scientific, scholarly issues that should be argued out that are not being argued out because people are scared stiff of an intimidating atmosphere on campus that promises all sorts of shit coming into your life if you dare to say the kinds of things you need to say to make your scholarly case.

 

J.C. Hallman:  Again, I think you’re disengaging in --

 

Hon. Kenneth Marcus:  -- Let me ask a question of J.C., and then I think we have some questions coming in. And I would invite the audience members to continue to send questions in.

 

      J.C., you made what I think is an empirical argument. You’ve suggested that there are some cases in which we think people have been canceled because initial news reports suggest that they have been sanctioned in some way or at least investigated, but it doesn’t pan out. And I’m wondering to what extent your argument is based on an empirical point.

 

      And I would add to that, by way of example, there have been stories about a couple of professors terminated from Georgetown Law School after one allegedly expressed concern that African American students in her class were getting lower grades than others. There certainly haven’t been any reports subsequently indicating that she’s been invited back. And I think that there have been other reports in the media suggesting other people have also been terminated from their positions.

 

      Would you agree that that’s a form of cancelation, regardless of whether they get a job elsewhere or not? And if it is, is it something that concerns you or not?

 

J.C. Hallman:  Well, I think the definition of cancelation that we agreed to as we were exchanging emails in advance of this exchange, I said that cancelation would mean that something has ended irrevocably and irreversibly, and that it amounts to being shunned or banished from your discipline, from your -- not even from an institution, but from an entire field of study that used to sustain you and used to recognize your professional output. So I don't know that I would say that if someone loses their job that they have necessarily been canceled. Have they lost their ability to sustain themselves? And when I posed that definition in our email exchange, Charles agreed, well, if that’s the definition, then very few people have been canceled.

 

      I think that the larger point here is what is the real culprit, particularly in academia? There was an article in The New York Times just a couple of weeks ago about academic freedom. And it made a point that I made even in my introduction here that ultimately when these kinds of things happen, the onus falls on the administrators of the school.

 

      Even when Charles was protested at Middlebury, the administrator who came up before him said, “Well, if people are disruptive, we can remove them, and we can suspend them.” And I guess I don’t know if they chose to do that or not, but it falls on the administrators to have the courage to stand up for those ideals. And that was basically the argument that was made by the writer in the Times. And I will include in the chat a link to that article.

 

      But I would say the same for anybody inside of academia who is contemplating taking on controversial subject matter. It takes courage to tackle big ideas. And if you’re worried about danger, if you’re worried about problems, if ensuring that you’ve got a paycheck is ultimately more important to you than your work, then I can’t help you. It’s not like it’s new that controversial ideas cause repercussions.

 

      It is simply just not a free speech issue, it’s not a First Amendment issue if you wind up suffering repercussions because of something that you’ve said because one of the basic misconceptions around this whole thing is this idea that the First Amendment ought to protect you in some way from what people around you are saying. It doesn’t. The First Amendment is top-down protection, protection from government censorship. In terms of what people say to each other, what people say inside of universities, what universities say about individuals, anything else, the First Amendment is simply silent on that and has nothing to say about it.

 

Hon. Kenneth Marcus:  I’m going to see if Charles has any comment on that. I’ll also say to the audience, I know that there is a great deal of conversation happening within the chat function. Most of it looks as if it is not directed at the participants. If you have a question directed to the participants, please put it in Q&A. Charles did you have any --

 

Dr. Charles Murray:  -- Very briefly, because I want to get to the questions. But very briefly, I’m saying that within academia, it’s not a First Amendment issue. It is an intellectual -- to provide an environment of intellectual freedom in which people can feel they may make their case in a scholarly, civil way, and they must face up to the consequences in terms of scholarly, civil responses.

 

      But insofar as it is within the university’s power to do so, they do so knowing that they are in a place where their right to say what they think is held as one of the highest functions of the university for precisely the reason that I opened my remarks with. The telos of the university is the search for truth, and the freest possible environment to engage in that is the sign of a well-run university.

 

J.C. Hallman:  Let me just finish off with one thing, Ken. That idea that -- I addressed this in the beginning, that idea of civil discourse or polite discourse being the thing that we’re all aiming for. I think it goes without saying that if we limit exchanges to that, that we are coming down in favor of people who are well heeled and well entrenched. It’s much easier for them to be able to engage in that kind of debate, and there’s way too many people out there who just do not have the opportunity to do that.

 

      And so what we’re now encountering with the advent of social media, that input can happen in different ways. And as I said, it’s not like it’s a constitutional issue. It’s simply counterspeech. There’s a long history of it in the labor movement. And it really shouldn’t be any different inside of academia. And it hasn’t, historically.

 

Hon. Kenneth Marcus:  J.C., your last remark is actually somewhat pertinent to one of the questions, so I’ll use that as a segue. An audience member asks, “Have you seen evidence that tenured faculty are using the rubric of collegiality, or lack of it, as a pretext to deny tenure to others who are simply unpopular, disfavored, or politically incorrect?”

 

J.C. Hallman:  I’ve seen it come up in tenure discussions. I’m not sure that I’ve seen it in context of someone having been politically incorrect, no.

 

Hon. Kenneth Marcus:  I don't know if, Charles, you’d add anything to that. If not, I’ll go to the next question.

 

Dr. Charles Murray:  Next question. I’m not on a university faculty.

 

Hon. Kenneth Marcus:  Directed to J.C. Hallman, “Do you believe that one of the ideals of higher education is to exchange ideas freely?”

 

J.C. Hallman:  I think I hold with Stanley Fish who, in his book The First, says that free speech in not an academic value. I would refer anybody to that book, which I thought was a fine book. It’s not as though Stanley Fish falls down on my side of this debate, but I think that in academia, there’s an illusion of free speech, that universities are microcosms. They are miniature societies that exist within a larger society.

 

      And for my money, part of the experience of it is that students have the impression of existing inside of a world that they can have an impact on. We give them a student government. We give them a student newspaper. Part of the learning experience of the university is being inside of a miniature world and being able to impact it in ways that become instructive to them when they leave that world and seek to impact the larger world in which their university is embedded.

 

Hon. Kenneth Marcus:  Let me expand on this notion of the free exchange of ideas. A lot of this discussion has been about faculty. In my work, I very regularly see students who are reluctant to express their viewpoint publicly. These are not just conservative students. They’re a variety of political orientations.

 

      Sometimes, it’s related, at least broadly, to what one might conceive of as cancelation. Sometimes, it’s about a concern that their views, if controversial, would lead to negative repercussions from instructors. Sometimes, it’s a fear that they will be threatened or physically harmed. But very often, it’s a concern that they will simply be excluded based on their view, that there will be some campaign to exclude them from the campus.

 

      Is this something that should concern us? Is this something that you’ve seen also? I’ve certainly seen it from enough students that it certainly seems to be there. And is there something that we need to do about either under this rubric of cancelation or intimidation, or otherwise? I’ll start with J.C., but I’d like to hear from Charles on that also.

 

J.C. Hallman:  Why don’t we let Charles go first? I spoke last.

 

Dr. Charles Murray:  Sure. Since I don’t interact with students a lot, I’m not the best person to comment on that. I do know as far back as the 1990s when I was around more students that I would -- I’m thinking specifically of cases of senior dissertations in which I was surprised when I read them that the student had taken a Marxist gloss on something, or that when I read in their dissertation something that just didn’t jive with what I knew their views were. The answer was, “Oh, well, the professor in this case, if I don’t do this, I’m going to get a B, or I’m not going to get honors.”

 

      Do I have statistics on how often that happens? I don’t. I do have anecdotes that go the opposite way, which is good, of my daughter who came home at the end of the term of 2004 at Middlebury, of all places, where she was a student and had been taking a course in political philosophy. And she had a professor whose politics she had no idea what they were after a semester of lectures. So I’m not saying it’s all one side or the other. I’m saying that there is enough circumstantial evidence that, for me, I think it’s probably fairly common.

 

J.C. Hallman:  I think that I’ve had plenty of conservative students, and I think my conservative students would say that I created an atmosphere in my classrooms that allowed them to express whatever they wanted to express. And I tried to help them express their ideas better, whatever they were. And I would say that if anybody was putting any kind of pressure on students to force them to think ideologically one way or the other that that would be wrong. I think that as a phenomenon is very, very far away from what cancel culture is supposed to be about.

 

Hon. Kenneth Marcus:  I’m going to try to paraphrase one of the comments we have and try to turn it a little bit towards a question to try to provoke some discussion. Should you have to have courage to take on controversial ideas? Shouldn’t the university try to create or nurture an environment in which it is easier for people to advance ideas that may or may not be popular? Should the university take the position that one lone voice has sometimes been right? Think about Galileo. Should the university try to make the environment more congenial to lone voices in order to encourage development of new truths?

 

Dr. Charles Murray:  I go with two things. One is I disagree with what you say but I will defend to the death your right to say it. That’s one of the things that I wish universities would back up. And J.C., at Middlebury, that introductory remarks by the president at Middlebury before I went on was basically telling them nothing’s going to happen to you, and nothing did happen to them. It was pathetic.

 

      The second thing, however, is sticks and stones will break my bones, but words will never hurt me. And so I think also that you have to have -- you should have the courage. Courage is necessary if you know you’re going to be criticized for it. And even if that criticism is in the form of a thoroughly documented scholarly refutation, that’s unpleasant. So you need courage in that sense. You should not have to have courage because there are going to be extraneous kinds of pressures coming in on you.

 

      And, J.C., if I’ve had one frustrating thing between our interchanges, I started out by saying I think that the university campus is a special case. No, I don’t want laws passed by the federal government on what can go on on campuses. I’m saying that your arguments that you properly made about the importance of free speech in broader society, once you get in the college campus, culturally, because of the purpose of the university, there should be a different milieu, there should be a different attitude toward the expression of unpopular ideas.

 

J.C. Hallman:  I think all of that’s fine. I think if you’re going to look at someone to criticize for that, you shouldn’t be likening 20-year-olds with cell phones to the Red Guards of the cultural revolution. And instead, you should be criticizing the administrators, as you just did, the administrator of Middlebury College. Those are the people upon whom that criticism should ultimately fall.

 

      I think that the corporatization of higher education, the way that administrators tend to think about their students as customers, that is a separate kind of conversation. It’s sort of the inverse of cancel culture, but I think that’s where the real criticism ought to be levelled.

 

      In terms of if you’re going to tackle a subject that is controversial, yeah, you need to have some courage because it’s never the goal that your ideas stay inside of the university, that ultimately, you hope that they escape the university, and they go out into the broader world and change that world. And so you’re going to be exposed to the free market of ideas one way or another. So, yes, I think that you simply need to be courageous.

 

Hon. Kenneth Marcus:  You’ve both been a little critical of administrations, and one of the questions is what should be done to change the work of administrators? What reform suggestions do we have?

 

Dr. Charles Murray:  You’re in the university, J.C. I’m not.

 

J.C. Hallman:  Well, I’ve taught at a number of different schools. I don’t have a permanent position with the university either. And I don’t have any experience in university administration, so I feel like I’m kind of looking from the outside.

 

      I think that when it comes -- I think that university administrators are really between a rock and a hard place in terms of balancing ideals of free speech, because there’s no guarantee of free speech inside of a university, but trying to balance those ideals with the realities of knowing, say, for example, the administrator at Middlebury College couldn’t suddenly expel all of the students who showed up to protest Charles because that would take too much of a big hit on their tuition income, and they probably just couldn’t afford to do that.

 

      So I think university administrators are in a difficult position. I’m not sure what I would prescribe in terms of how an individual administrator might make things better. I think that thinking in a more macro sense about what has happened in terms of the corporatization of higher ed is maybe where you might be able to make some progress. I think that we’ve lost the sense that universities are about educating students, and it’s become more about thinking of them as customers, and that’s unfortunate.

 

      I don't know if I have a solution, but I think that that is even part of the solution to the larger cancel culture problem, that if we were approaching things in different ways, maybe those shaming campaigns wouldn’t be happening at all.

 

Dr. Charles Murray:  I guess I want to throw in two recommendations. One is University of Chicago, which sent out a couple of years ago a letter to its incoming freshmen saying very bluntly, this is a university. You’re going to be exposed to ideas you don’t like. You are going to be exposed to ideas that may frighten you in some sense, but tough, that’s what universities are all about.

 

      And my other recommendation, which is less directly pertinent, is fire 95 percent of your administrative staff and go back to a university that sees itself as providing a bridge from adolescence to adulthood instead of a university that’s a cocoon that sustains adolescence as long as possible. But that’s throwing in a separate set of issues.

 

Hon. Kenneth Marcus:  Let me follow up on that, although I’ll note that we have only about 7 or 8 more minutes. But I think the administrator question is a good one. I’ve seen a number of instances in which potentially controversial speakers are on campus, and there is some sense that they are likely not only to be protested but also interfered with in some way.

 

      And the issue arises should there be extra security? Sometimes, administrators provide the security but charge the hosting group in ways that can be debilitating and amount to a heckler’s veto. In other cases, they provide the security and pay for it themselves. In still other cases, they have been reluctant either to provide extra security or to address even those protests that go beyond the sort of brief, ephemeral protests that are protected by the Constitution because they have various either political or related concerns.

 

      And especially since Black Lives Matter, we’ve seen concerns by administrators who are unwilling to have too much of a police presence even where there is a potential of violence in an event, and even where there are some groups of students who fear that they themselves will also be harassed as a result. Are administrators right to be reluctant in this way, given some of the sensitivities of campus groups, or does this pose a threat to free speech on campus?

 

Dr. Charles Murray:  I know a lot about this because I had a lot of experience. Talk about a rock and a hard place. If you are a university administration who deeply believes in having controversial speakers come in, but as a practical matter, it’s going to cost you 50 grand in security to ensure the safety of those speakers, I sympathize with them being reluctant to invite that speaker because it is simply a statement of fact.

 

      Harvard University has a full time staff for security. They have visiting heads of state and all that. So when I went to Harvard after the Middlebury event, their security was incredible, and I got to give my speech with no problem at all. You take a small liberal arts college, they can’t afford to do that. And that’s just a fact of life. But if they don’t do it, you’re really being crazy if you’re willing to speak on that campus because you’re putting yourself in danger.

 

J.C. Hallman:  I think I would question the entire endeavor of these on-campus speakers. The idea that we bring speakers onto campus to engage in debates is a holdover from 19th century lecture circuit. It’s an old, old habit. And I think that when you look at the kind of people who are being brought to campuses, and I’m thinking of speakers like Ann Coulter and Milo Yiannopoulos -- I’m not sure if I’m saying his name right. We don’t need to go hear Ann Coulter speak to figure out what she’s going to say. It’s not really about that.

 

      I think that there is a concern, a legitimate concern, that when a university invites a speaker, it’s a tacit approval of what they’ve already said. And sometimes, these are not -- Ann Coulter and Milo Yiannopoulos, these are not legitimate scholars. These are media figures. They’re celebrities. And way too often at universities, the choice of who to bring is intentionally trying to bring in big ticket people.

 

      And so I would tend to attack the entire phenomenon of these on-campus speakers as saying that the whole thing has kind of lost its way, probably in an effort to attract crowds. And so if you attract a crowd and then you say, well, it’s too big a crowd and we don’t like what the crowd has to say, I think that you’re sleeping in the bed that you made. There’s got to be a different kind of process for figuring out the whole business of on-campus speakers.

 

Hon. Kenneth Marcus:  We’re approaching the end of the hour, but to Charles Murray, did you have any last response to that question or J.C.’s remarks?

 

Dr. Charles Murray:  Point number one is I don’t think outside speakers are a big deal in the life of a university. Point number two is that I’m not a fan of Ann Coulter, but if it’s okay not to invite Ann Coulter, it’s okay not to invite me too because, again, you’re talking about a continuum. How about James Watson? Is he a legitimate scholar? How many universities would invite James Watson as an outside speaker?

 

Hon. Kenneth Marcus:  Thank you. Thank you, J.C. Hallman, and thank you, Charles Murray. On behalf of the Civil Rights Practice Group, we appreciate your being here. Based on the robustness of the chat, I can see that people were very intrigued and found this to be enlightening and provocative. Thanks to those who contributed questions, and apologies to those whom we weren’t able to get to.

 

      This is part of not just a continuing series on cancel culture, but we have at the Civil Rights Practice Group a significant number of webinars and podcasts. We invite members of the audience to become involved in our group. I thank you, and I will turn this foreclosure to our key Federalist Society representative, Evelyn Hildebrand.

 

Evelyn Hildebrand:  Thanks very much, Ken. And thank you to our speakers for your contribution, participation, excellent conversation this afternoon. Thank you to our audience members for listening and for participating, sending in your questions and comments. We welcome listener feedback by email at [email protected], so please do send questions or comments there. And in the meantime, thanks very much, everyone. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.