Speak Freely: Why Universities Must Defend Free Speech

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group and The Federalist Society's Faculty Division, was recorded on Thursday, May 24, 2018, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon, our conversation is on Professor Whittington's new book, Speak Freely: Why Universities Must Defend Free Speech. My name is Wesley Hodges, and I am the 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.

 

Our moderator for today's discussion is Mr. Anthony M. Deardurff, who is the Deputy Director of the Faculty Division at The Federalist Society. Anthony will introduce the speakers and the subject today, and after remarks, we'll move to an audience Q&A. So during the back and forth, keep in mind what questions you have for any of our speakers or for the book itself. Thank you for speaking with us. Anthony, the floor is yours.

 

Anthony Deardurff:  I'm Anthony Deardurff, Deputy Director of The Federalist Society's Faculty Division. Thank you for joining us. As Wes noted, today we will be discussing Professor Keith E. Whittington's recent book, Speak Freely: Why Universities Must Defend Free Speech, published by Princeton University Press. We are delighted and honored to have with us the author himself, who is a Professor of Politics at Princeton University, as well as Professor Frederick Schauer from the University of Virginia School of Law to offer some commentary that I am certain will be thought provoking. I'm going briefly to provide a bit more background on our speakers, and then return our focus to the book and hand things over to Professor Whittington to launch the discussion.

 

So we're very lucky to have with us today two academics who are leading authorities in their respective fields. And while their accomplishments and accolades are simply too numerous to list in full, I will provide a brief selection here for each. Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton. He writes about American constitutional law, politics and history, and American political thought. He's been a John M. Olin Foundation Faculty Fellow, an American Council of Learned Societies Junior Faculty Fellow, a Visiting Scholar at the Social Philosophy and Policy Center, and a Visiting Professor at the University of Texas School of Law.

 

He's also a member of the American Academy of Arts and Sciences and an Inaugural Fellow with the University of California's New National Center for Free Speech and Civic Engagement where he is developing model guidelines for campus free speech, moving from the defensive principles to concrete statements and regulations that can be adapted and used by college administrators. Among other things, Professor Whittington is known for his book Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. And he's an important voice and noted authority in contemporary debates regarding the scope and force of originalism.

 

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, and previously was Frank Stanton Professor of the First Amendment at Harvard. A Fellow of the American Academy of Arts and Sciences and recipient of the Guggenheim Fellowship, Professor Schauer is the author of numerous works, including The Law of Obscenity, Free Speech: A Philosophical Enquiry, and perhaps of particular relevance here, a piece in UVN Magazine called, "When Speech Meets Hate." As a founding editor of the journal Legal Theory, Professor Schauer has chaired the Section on Constitutional Law for the Association of American Law Schools and the Committee on Philosophy on Law of the American Philosophical Association. He is a well-known authority on freedom of speech, constitutional interpretation, evidence, legal reasoning, and the philosophy of law.

 

Knowing now that we are in the very capable hands of these distinguished academics, let's turn back to the book at hand, Speak Freely: Why Universities Must Defend Free Speech. I'll leave the analysis and debate to our speakers, but I think it's helpful to open by noting a point made early on by Professor Whittington in Chapter 2 about why free speech in universities is important. "Those of us who are lawyers may often find ourselves inclined to zero in immediately on legal questions. What does the Constitution, the First Amendment, require?"

 

That focus, Professor Whittington suggests to us, is too narrow. "Free speech," he emphasizes, and I am quoting here, "is important to universities because it is constitutive of the institution, not because it is imposed as a legal restraint by an outside force. Small children might play with a chess board and chess pieces, but if they do not adhere to the rules governing how each particular piece can move across the board, they are not playing chess. The rules of the game are constitutive of the game itself." And with that thought, I will turn the floor over to Professor Whittington. Thank you.

 

Prof. Keith Whittington:  Thank you. And I appreciate the opportunity to talk about the book and talk about these issues more generally. It may make sense to start by mentioning a bit about what motivated me to come to the book and write about this particular topic, and maybe particularly at this moment. I guess I have three sort of interrelated type of concerns in mind that really finally drove me to sit down and try to write this out. One is what I see as a declining appreciation of universities and what they do more generally. And it plays out in lots of contexts, from legislative debates to arguments that students make as they enter into their experience in colleges and universities. And it seemed helpful to try to sketch out a little more why we should value universities, what is the core mission of a university, what is it we're trying to accomplish on university campuses?

 

Secondly, of course, and more specifically, there have been lots of quite evident threats to free speech on campus. There's been a steady drumbeat of news reports of various episodes occurring on campuses across the country, and really on campuses across the globe as well as the United States, in which students, faculty, and administrators find themselves in trouble because of things they've said, or alternatively, find themselves trying to suppress speech on campus in various ways. And it seemed to make sense to think through more carefully why we ought to value free speech and try to think about how the general principles of free speech should apply to some of these ongoing controversies.

 

And then finally, a third concern is one that's separated from universities, that's simply trying to think about the increasing intolerance of dissent in our polarized society more generally. So I hope that speaking about free speech issues in the context of universities is helpful not only for thinking about universities, but ultimately is also helpful for reaffirming some important liberal principles of tolerance of disagreement and how we ought to try to proceed in an environment in which people are going to likely disagree with us about politics in various ways. And yet, we, nonetheless, still need to live together and work together and try to create a productive and tolerant society.

 

And as noted, the concern of the book is, really, try to back away from thinking about the First Amendment and U.S. constitutional law as such, and try to think about these issues of free speech from a broader perspective of -- from a society perspective of why we ought to value free speech and tolerance for dissent more generally. I think constitutional law is very helpful in trying to think through how we ought to examine specific kinds of problems that arise. Those problems have often arisen in a legal context, and judges have helped us think through how to apply general principles to specific kinds of concrete controversies. And those are often helpful, I think, for people on college campuses to sort of see how this has played out in other contexts and how that can help us think through the immediate controversies that we might face.

 

But I also think it's important to emphasize to those on college campuses that they should care about free speech, not simply because some judge somewhere is going to insist that they do so, and there's a set of legal rules that apply to some college campuses that they have to respect, but instead to emphasize that given the values and concerns of the university itself, people ought to care about free speech and seek to try to protect it. I think sometimes in thinking about these kinds of problems on college campuses, there's an inclination to think that we're in a uniquely bad moment for campus free speech issues and that the current generation of students are particularly troublesome when it comes to free speech. And so frequently, they're derided as snowflakes who are unusually sensitive and too delicate to confront the real world and the kinds of disagreements and debates they're going to encounter in the real world.

 

And I think that's a misleading way of thinking about the problem and really misses some important issues that are going on on college campuses now. There's no question, I think, that the current students have their own set of concerns, they have their own set of things that they find particularly controversial and offensive. And the things that they find controversial and offensive might well be quite different from the things that their parents or their grandparents found to be controversial and offensive. But their struggle to balance a general appreciation for principles of free speech with particular controversies that they see in front of them is certainly not unique to them.

 

So as long as social scientists have been studying, really, American citizens more generally, but often those that live and work on college campuses more particularly, we found that Americans are often quite willing to say that they value free speech in the abstract. But when you start confronting individuals with specific examples of speech that they regard as particularly offensive or controversial, people often start backpedaling and start thinking that this particular example of controversial speech really falls into some kind of exception to their more general commitment to free speech.

 

And on that front, the students today are not that different than students a couple of decades ago, or 50 years ago. They sometimes have slightly different things that they think fall within the exception compared to what others have done. And so I think this an ongoing struggle that we face on university campuses, but also in the liberal democracy more generally to emphasize what those principles of free speech are and to try to commit ourselves to actually adhering to them, even when we find particular things that we find controversial.

 

So let me just sketch out briefly what the book tries to do. I begin by thinking about the mission of the university itself, which I take to be at heart an effort to advance the frontiers of human knowledge and communicate what it is we've learned to students, to fellow scholars, and ultimately, to the general public. So at heart, universities are truth-seeking institutions that are trying to operate on the frontiers of what it is that we know. Some of the other universities also do lots of other things, but at the end of the day, that's the central mission, I think, of what universities are trying to do. And there are implications of being committed to a mission of that sort, and those implications ultimately should include a commitment to free speech, to valuing skeptical inquiry, to valuing freedom of thought, to appreciating a tolerance for disagreement, and for wanting, ultimately, intellectual diversity.

 

Universities are not always perfect about how well they pursue that mission or how well they actually try to implement those things that are connected to that mission. I think universities should struggle harder to try to protect free speech and try to embrace intellectual diversity and to create greater tolerance for disagreement on their campuses. But they do have the aspiration of doing that, and I think that's an important aspiration and something that we ultimately want to reinforce.

 

So then, through the book, I try to talk some about why exactly we need to protect free speech, given those commitments, and here I emphasize two slightly different kinds of concerns. One, drawing from John Stuart Mill in particular, thinking about the importance of free speech as really the only means for gaining true knowledge at the end of the day. Universities are about expanding the frontiers of knowledge. The only way they're going to do that is if they protect scholars and students and faculty on those college campuses to be able to ask difficult questions, pursue the answers wherever they think they might lead, and be willing to say things that are controversial; controversial both on campus, but also controversial to the broader society.

     

For the second thread that I also try to draw out some in the book draws more from the American constitutional experience, which is to say we ought to be very skeptical about empowering people to act as censors, whether the people we're empowering are government officials or whether they're campus bureaucrats; that in the context of controversial speech, we've learned through long experience that we can't trust people with the power to suppress speech. And we ought to be skeptical about that in the context of law and politics and American society more generally. And we also ought to be skeptical of it in the very specific context of college campuses. And the same problems that we've encountered across our constitutional history of government officials abusing their power to suppress controversial speech that they find particularly disagreeable is something that also plays out in a campus environment. And those of us on campus ought to learn that lesson and make the same move that American judges have made, which is to try to protect speech as much as possible.

 

And then, finally, the book tries to apply those general principles to a variety of specific kinds of controversies that have arisen on college campuses, ranging from trigger warnings and safe spaces to thinking about controversial campus speakers, to thinking about how faculty use social media. And there, the concern is across sort of two basic fronts. One is to emphasize the importance of securing academic freedom, which is fundamentally a concern with guaranteeing some professional autonomy for scholars, and how they research and what they teach to be guided by professional standards of expertise rather than have their teaching and research channeled and limited by the influence of outside forces, whether that's public opinion more generally, or orthodoxies on campus, or economic interests that might intrude upon academic research and teaching.

 

But also, secondly, universities should be concerned with free speech more generally. That is, they ought to be concerned not only with what scholars are doing as experts trying to advance the frontiers of knowledge, but also allow for robust public debate on campuses of issues of general concern, that campuses have become important venues in which students and community members as well as faculty think about important issues that affect society generally and try to take those ideas fairly seriously. And in that context as well, universities should be concerned with creating a space in which there is lots of room for a genuine debate about important issues of the day, a recognition that we're going to disagree about those issues, and yet, nonetheless, they have tolerance for that disagreement and an invitation to engage in that disagreement and engage in that kind of conversation.

 

So ultimately, I hope that universities are committed to resisting conformity, to questioning orthodoxies, to tolerating disagreement. And in order to do those things effectively, they need to foster an intellectual environment in which they respect intellectual diversity, they respect the fact that people are going to disagree, and they respect the fact that people are going to ask difficult questions and sometimes come to very controversial conclusions, and that that's part of the learning process and part of how we advance knowledge. And that's what universities ultimately need to do and shouldn't shy away from sometimes doing things that are going to seem misguided or controversial, or even dangerous or offensive. So thanks.

 

Prof. Frederick Schauer:  Let me just say that I think that this is a terrific and needed book. I agree with almost all of it. But of course, my role here is not to praise Keith, but to bury him. Or to put it somewhat more gently, my role, at least, is to offer some skeptical observations, perhaps in the spirit of Millian inquiry. So first, bear in mind that both Keith Whittington and I are academics talking about free speech in general and academic freedom in particular. To some extent, that's like Texans or Saudis talking about the importance of oil, or French winemakers talking about the health benefits of Bordeaux. Academics are self-interested participants in debates about academic freedom and about free speech. And for those who are not themselves academics, it's important to take what academics say about academic freedom and free speech with, if not a grain of salt, at least knowledge of the self-interest that might be involved.

 

So let me be a little bit more particular about that. So Keith Whittington says, correctly, in my view, that universities, in particular, ought to be the kinds of places that don't have rigid orthodoxies, that are open to challenges to orthodoxies. Here, there's a very interesting observation came in 1950 from the great Judge Learned Hand of the United States Court of Appeals for the Second Circuit. Judge Hand said, "The interest which the First Amendment guards and which gives it its importance presupposes that there are no orthodoxies, religious, political, economic, or scientific which are immune from debate and dispute. Back of that is the assumption, itself an orthodoxy, and the one permissible exception that truth will be most likely to emerge if no limitations are imposed upon utterances."

 

So I want to talk for a few minutes just about free speech in general, or the First Amendment in particular, as itself an orthodoxy. I say this from a little bit of a self-interested perspective. I have been an academic for 44 years. Before that, I was a practicing lawyer for a few years. Both as a practicing lawyer and as an academic, I have studied, written about, taught about freedom of speech in general and the First Amendment in particular. So then we have a question. As an academic who studies free speech, should I be an advocate for free speech, or as an academic who studies free speech, should I have the same kind of open-minded, dispassionate, distanced view about free speech that free speech encourages us to have about everything else?

 

I say that in the context of Keith's book in particular. The subtitle, Why Universities Must Defend Free Speech, it is entirely appropriately a book of proscription, a book of normative advocacy. That's a perfectly appropriate thing for him and others do to, but there remains at least some tension between the idea of advocating for free speech and thinking about free speech as itself a topic of academic inquiry, itself a topic of scholarly attention, scholarly focus, and so on.

 

So in light of that, it may be important to recognize that for all of the important and mostly correct things that John Stuart Mill said on liberty in 1859, there was also a very important rejoinder by the great legal and criminal law theorist James Fitzjames Stephen just a few years later in a book called Liberty, Equality, Fraternity. Stephen challenged Mill, not by attempting to shut him down, of course, but by engaging with him on his own terms. Somewhat later, the political scientist Willmoore Kendall responded to Karl Popper's The Open Society and Its Enemies by writing an important article called "The 'Open Society' and Its Fallacies," and throughout the free speech tradition, there have been important arguments either for limitations or for the idea that free speech itself may rest on more fragile philosophical foundations, that its strongest advocates from John Milton to the present may have believed.

 

So at the very least, I would at least urge those who are listening and engaging with this conversation to recognize that we might, in the spirit, again, of Millian inquiry, think about being, at times, appropriately skeptical about the idea of free speech, or more concretely, the particular American manifestation of it. Here, we have a very strong example of American exceptionalism. The United States is not the only liberal democracy in the world, but almost every other liberal democracy in the world, and maybe all of the other liberal democracies in the world, would restrict the kinds of speech that are getting students at Berkeley, and Middlebury, and other places, so exercised. That doesn't mean that these other democracies are right to do so. It does suggest that there are other models in countries that are not fascist totalitarian dictatorships, and that it is at least worthwhile to think about that.

 

It's also worthwhile to think about the fact that universities are themselves hotbeds of content regulation. I am sitting here with a pile of student papers in front of me, final examinations from my first year Constitutional Law course. Students will get better or worse grades depending on the content of what they say. Academic journals will publish or not publish things depending on the content of the submissions. In small seminars, the leader of the seminar, appropriately, will chastise students who go beyond the appropriate boundaries of appropriate discourse in a seminar, and so on.

 

So one slightly longer, but not very much longer, final observation – we need to get some sense of the scope of the problem. Every single example that Whittington uses in his book is real. They are all troubling, but it might be useful to think about how we would engage in a systematic inquiry into just how much of this there is. To what extent are ideas in general being stifled? I am inclined to think they are. I am inclined to think that Whittington is right. But we have seen from many examples in recent history that at times, it is easy for people, or judges, or members of Congress, or others, to think that some number of anecdotes are more representative of a larger problem than, in fact, they are. And then the question is are we thinking about universities or are we thinking about society in general? And it may also be a mistake to generalize from problems in universities to problems in the larger society.

 

Perhaps the smartest thing that has ever been said about this was said about two decades ago in the context of these issues by The Wall Street Journal columnist Joe Queenan, so let me quote Queenan. "The way the world works is this: Leftist intellectuals with hare-brained, Marxist ideas get to control Stanford, MIT, Yale, and the American Studies department at the University of Vermont. In return, the right gets IBM, Honeywell, Disney World, and the New York Stock Exchange. Leftist academics get to try out their stupid ideas on impressionable youths between 17 and 21 who don't have any money or power. The right gets to try out its ideas on North America, South America, Europe, Asia, Australia, and parts of Africa, most of which take Mastercard. The left gets Harvard, Oberlin, Twyla Tharp's dance company, and Madison, Wisconsin. The right gets NASDAQ, Boeing, General Motors, Apple, McDonnell Douglas, Washington D.C., Citicorp, Texas, Coca-Cola, General Electric, Japan, and outer space. This," adds Queenan, "seems like a fair arrangement."

 

All I would suggest from what Queenan says is that when we are thinking about the problem, it may indeed be, and I think Keith is right about this, there is a problem in universities, but let us not generalize to there being a problem in the larger society. And it may be that there are forces in the larger society that go in the opposite direction. And I will update that last observation, or update Queenan, and end with the final observation of the left gets Middlebury College, the right gets the National Football League. Thank you.

 

Prof. Keith Whittington:  So of course I mostly agree with those points, and I think they're important qualifiers for how we think about it. And I guess I resist a little bit thinking that we ought to regard free speech itself as an orthodoxy on college campuses. Like everything else, we ought to be prepared to debate it, and in fact, as some institutions want to take a more restrictive approach to thinking about free speech, then I'm willing to be pluralistic about that and let them go forth and try the experiment. I myself wouldn't want to be associated with that. I wouldn't want to send my daughter to such a campus, but if others want to teach and work and learn on a campus that has built into it lots of restrictions on speech and scholarly inquiries, then let them try it out and see how it works.

 

Certainly, I think we get lots of value from approaching free speech issues from an academic perspective and thinking very carefully about what their foundations really are, what their implications really are, how we ought to put limitations on them. Fred Schauer's done lots of terrific work in exactly that kind of vein, and I've learned a terrific amount from that, and so we ought to be thinking about free speech problem, that sort of skeptical scholarly perspective. It just seemed like it also was necessary to talk about free speech in a way that was more explicitly normative and committed in order to address some of these current issues on campuses.

     

I also take very seriously, I think, this last point. I think it is worth emphasizing that it's a little hard to know what the scope of the problem actually is on college campuses. There's no doubt that there are problematic episodes of speech that goes awry, of events being shut down, of professors being fired for saying things that are controversial. And when that happens, we ought to be able to identify them, point to correct principles, and try to resist making those mistakes again, and correct them when we've made them.

 

But it's hard to know just how extensive those kinds of problems are. It's hard to collect the data, it's hard to think about these things over time. We have some interesting debates going on right now among people looking at general public opinion polling, trying to assess are current students, for example, more skeptical about free speech than people in the general population are than students who were 10 or 15 years ago? I think there are valuable debates to be had about trying to identify empirically just how skeptical students and faculty, for that matter, are about free speech.

 

I think it's also worth trying to get a better handle empirically on how common some of these problems are. So for example, the legal advocacy group FIRE has collected information on disinvitations of speakers on college campuses, and that's helpful as a way of trying to assess just how common these things are. But even then, the data collection's very hard. Lots of things fly under the radar, never get reported, and as a consequence, I think there's often a fair amount of troubling activity relating to free speech on college campuses that really do fly below the radar and go unnoticed, as well as these very high-profile incidents that happen to get lots of attention.

 

So I think it's important not to panic about what's happening on American university campuses. But nonetheless, I think it's also important to reemphasize some of these core principles that underly American universities and to try to ensure that faculty, students, and administrators do their best to try to live up to those principles if they can.

 

Prof. Frederick Schauer:  I think that's right, but the example of speakers who get disinvited is obviously real. But if you will excuse the double negative, I'd also be interested -- or a careful data collection would include the speakers who are not disinvited. That is, what is the range of speakers who actually get to speak? How does that compare to that range from 10 years ago, 20 years ago, 30 years ago, and so on? I don't have an answer to that question, but as I said in lots of different areas, it may be important not to take some number of examples as more representative than they are.

 

And I'll just end this bit with emphasizing again as I said, I may have a special disability. Implicit in Keith's book is the idea that there are lots of academics out there who are advocates more than they are academics. I think he is right about that, but if I am an academic about free speech, than it may be especially important that I not be an advocate. That's about me and not about the problem in general.

 

Anthony Deardurff:  Well, great. Thank you very much, Professor Whittington and Professor Schauer. While Wes, I think, keys up anyone in our question-and-answer queue, I think I'll go ahead and just get us started with one question which I think I can really direct to both of you. Professor Whittington makes reference to a sort of growing army of contingent faculty at universities like adjuncts who sort of have little opportunity to research. They typically don't have any protection or participate really in faculty governance, but they are, of course, cheaper for schools to employ. Are you both in agreement that that's sort of a matter of concern more in the long term, especially with respect to speech, perhaps because it does sort of cede power to the administrators in some way, or am I just sort of overstating the concern there?

 

Prof. Keith Whittington:  So I think it's a concern that we have so much reliance in universities on adjuncts. And there's lots of reasons, I think, to be potentially concerned that. But thinking about it from the specific perspective of academic freedom and free speech, I think we ought to be concerned about it in that tenure was designed to protect faculty precisely so they could research difficult things without having to worry about how people are going to react to that. And likewise, teach difficult subjects without having to worry about how students and parents and legislators are going to respond to that. And I think sometimes it's easy to imagine that the problems that gave rise to tenure in the first place have gone away, and so maybe tenure's not as important as it once was.

 

But I think there's lots of evidence that adjuncts who wind up saying something controversial on college campuses very quickly find themselves without a job. And that's easy to do without having to take big, elaborate steps of publicly firing, after a lot of difficulty, a tenured faculty member. It's a simple matter of simply not renewing a contract for the next semester. And I think that happens a fair amount, and it ought to worry us if we're concerned about the ability of people on college campuses to teach without worry about what backlash they might face if they're teaching things that are difficult, sensitive, and controversial.

 

Prof. Frederick Schauer:  Yeah, I agree with that completely. It's easy for those of us, especially people like me, who as tenured faculty members at public universities both have the protections of tenure and the protections of the First Amendment in a literal or doctrinal sense, to ignore the fact that lots of adjuncts or year-to-year contract people don't have any of those protections, but they're still the ones that are teaching our students, often engaging in research. They are in an especially fragile situation, and that's worrisome.

 

That's a very different problem than the problem of administrators running universities. The question combined the two, but it's two very different problems, and possibly going in opposite directions. Back when President Eisenhower, not President of the United States, but President of Columbia University, as he was for a few years before being President of the United States, addressed the faculty as employees of this university, whereupon a faculty member stood up and said, "Excuse me, General Eisenhower, or President Eisenhower, we are not employees of this university. We are this university." I think that sense has been lost. I think we have lost an important sense of faculty governance of the universities. That's a problem that also can have unfortunate effects on academic freedom, but that's a different problem than the adjunct problem.

 

Anthony Deardurff:  Well, great. Thank you. Wes, I think, we can probably turn to our audience Q&A.

 

Wesley Hodges:  The floor is now open. While we're waiting for any questions from the audience to pile up in the queue, Anthony, do you have any more questions for our speakers?

 

Anthony Deardurff:  Well, I suppose one that might be worth considering is for Professor Whittington. You seemed to draw a distinction, at least to me, between discursive limits incurred by academics within their own disciplines on each other, or in terms of deciding what the sort of conditions for valid or legitimate work in our field, and sort of limits imposed externally by university administrators. What would be the reason for drawing a sharp difference there, because it seems like the academic may be as subject or prone to political pressures or biases as administrators are.

 

Prof. Keith Whittington:  Yeah, they certainly are prone to their own blind spots and biases. And I think that's led some to be very pessimistic about the future of academia and fairly skeptical about faculty governance and faculty autonomy in academia. Nonetheless, I think as Fred just pointed out, it's basic to what we do as teachers and scholars to evaluate the content of people's substantive ideas. We evaluate the content of what students say in the class and on tests. We evaluate the content of what our fellow scholars say in publications and dissertations and conference papers, and we make judgements about that. And part of the goal is to then get out what we take to be bad information and emphasize what we take to be good scholarship and good information. And that's a power that can be abused, just like it can be abused in other contexts.

 

But I think, ultimately, we're better off by leaving the ability to make those judgements in the hands of faculty guided by scholarly norms than we are by placing a greater power to oversee that process in the hands of campus administrators, for example, or state legislatures, that for all the problems that we might perceive of faculty and how they shape the course of scholarship, we're better off with, over time, with faculty doing that than have state legislatures about whether or not particular classes ought to be offered to students, for example. Or having college presidents making decisions about whether or not particular professors are doing a good enough job in their pursuit of knowledge. So we should tolerate even the mistakes faculty make on this front because it's the, I think, ultimate [inaudible 42:20].

 

Prof. Frederick Schauer:  I totally agree. Yes.

 

Anthony Deardurff:  Okay, thank you.

 

Prof. Keith Whittington:  Thank you.

 

Anthony Deardurff:  Wes, do we have anybody in the queue?

 

Wesley Hodges:  We actually have four questions lined up in the queue. Let's go to our first caller.

 

Bill Severson:  Yeah, hi. This is Bill Severson out in Seattle. I have a question you guys haven't addressed yet which is sort of the issues raised by Jonathan Haidt in terms of the political sort of structure of faculty in universities these days, which I think is related as well to the free speech issue, as it seems as though the sort of heavier left-leaning faculty orientation contributes to an intolerance toward speakers who come from a right-wing orientation. Out here in Seattle, we recently -- the University of Washington, that university actually threatened to force the college Republicans to pay for all of the security required—that the university thought would be required—to protect a conservative speaker from sort of radical leftists who would threaten violence to shut down the speaker.

 

And it just seemed to me a very troubling sort of idea that a president of a university could think that it's appropriate to charge the sponsoring entity for a person who's coming -- is advocating a position that does not involve extreme positions or violence, but nevertheless, essentially shut that speaker down, or allow leftists to shut that speaker down by threatening violence. And that seems to me that maybe that sort of thing is tolerated because, at least to me, the idea of the university as coming to be involved as something, as an entity that encourages making the world a better place as defined by a particular ideology, as opposed to a truth-seeking institution that might question that ideology.

 

And I think universities are moving away from the truth-seeking function into being sort of career training kinds of institutions, and institutions promoting activities or attitudes that are going to make the world a better place pursuant to a particular ideology. So I guess I'd like your comments on whether or not you think that faculty orientation has anything to do with it, and also kind of what is the role of the university in terms of protecting or managing outside speakers and access by students to different political viewpoints across the range?

 

Prof. Frederick Schauer:  Let me start by just making a narrow point about positive law. It turns out that there is a Supreme Court case that goes back about 30 years called Forsyth County, Georgia v. The Nationalist Movement in which the Supreme Court said quite clearly that it is inappropriate to impose upon speakers the costs of security that might be occasioned by reactions against those speakers. That's an issue in a lot of places. It's certainly an issue in Charlottesville, Virginia, where I live. But the Supreme Court is pretty clear about that. If there are expected disruptions, the cost of those disruptions cannot be imposed on the speaker.

 

The larger question is important. It's obvious that a range of institutions—colleges, universities, libraries, most newspapers, museums, art institutions, cultural institutions, and so on—tilt to the left. It's equally obvious, as Joe Queenan pointed out, that a large number of other institutions tilt to the right. Whether the tilting to the left and tilting to the right counterbalance each other, I don't know. It's worth thinking about, but that's why I ended my example with the National Football League that may have a lot more influence on American thinking and American consciousness than most universities. And maybe we ought to be troubled by what's going on at universities, but maybe we ought to be troubled by the same thing when it comes from the National Football League.

 

Prof. Keith Whittington:  Yeah, I'm troubled by both. And just to briefly say a bit about the intellectual diversity issue in particular is I do think it's problematic for universities to find themselves with very politically homogenous faculty. And the problems, I think, are multiple. Some of those problems, I think, wind up being reflected in scholarship and teaching, that we ought to value intellectual diversity precisely because it helps us be critical about our assumptions and to be more skeptical about things that might otherwise get taken for granted. And you have disciplines that are completely bereft of conservatives, for example, then a lot of things are going to go unquestioned that really ought to be questioned. And that makes scholarship and teaching worse than it otherwise would be.

 

But I think there's also a concern of the type that you emphasized in the question about what the intellectual climate is like on campus. If you don't have any conservatives on the faculty, it makes it harder to model disagreements and respectful engagements with controversial ideas. It makes it harder for faculty administrators and students to recognize the range of ideas that are out there, and as a consequence, be willing to engage them more seriously. So I think, for example, that Princeton University benefits from the fact that we have some prominent conservatives on campus. And students and faculty administrators have come to appreciate that they're capable of expressing ideas and engaging in civil debates, and that has beneficial effects in thinking about campus speakers and how we conduct ourselves more generally. And other universities would be better off as well if they had a wider range of opinion reflected on their staff.

 

Prof. Frederick Schauer:  Yeah.

 

Wesley Hodges:  Thank you, caller, for your question. We have three questions remaining in the queue. Let's go ahead and move to our next caller.

 

Chris Garvey:  Hi. I was at Columbia in 1971 and taking an Economics class there. This is Chris Garvey. I'm running for Attorney General in New York State as a libertarian candidate. And the professor and the students, except for me, were all socialists, apparently. And so it turned into a debate between the one free market guy and all the socialists in the class. And at the end of the term, I took an oral exam, and the professor said, "You know, you're not really a conservative." And he hooked me up with the libertarians. He said, "I used to be one of those, but I'm not anymore."

 

And I couldn't understand how somebody could go become a socialist after understanding the free market. But he had a job as an economics professor, and there were no free market economics professors at Columbia. So at that time were no free market economics professors anywhere that I know of in academia. And that was possibly the influence of the donors, who tended to be leftists, or just the way they administered it. So this is a problem that's been going on for a long time. Would you care to comment on that?

 

Prof. Frederick Schauer:  I mean, it may be that in economics, things are—or in business schools—things are different than they are in some number of humanities departments. I suspect that the typical 2018 economics departments [have] far, far, far fewer people with Marxist sympathies than you would find in a typical humanities department. Whether that's good or bad is something else again, but we've been talking about the university as if it were a homogeneous institution. I don't think it is. Economics departments, business schools, and so on, have a political tilt that's somewhat different from the political tilt of comparative literature departments or ethnic studies departments, and so on.

 

Whether within the university, the university as a whole has a tilt is a different question. I think it probably does, and I think you properly raise the question about donor influence. I think people might disagree with you about the political tilt of donor influence in 2018. Yes, there is donor influence from the right. There is donor influence from the left. How that balances out, I'm not sure. I find donor influence in general, at least on research agendas or faculty hiring, very, very troubling. Those of us at older and better endowed universities are more immune from that than others, but it's a very troubling phenomenon.

 

Prof. Keith Whittington:  Yeah, I agree with all of that.

 

Wesley Hodges:  Thank you, caller, for your question. It looks like we just have one question remaining in the queue. Let's go ahead and move to that caller.

 

Caller 3:  Hi. I've done some work for Greenpeace, and an analogy I use when I'm talking about the environment is 100 years ago, we still sent men into mountains with pick axes and maybe a little bit of dynamite, but they were working individually to pull coal out for people to heat their individual homes. Today, we blow mountain tops off. Similarly, there's been a transcendent change in communications -- Sorry if this motorcycle is bothering you -- but there's been a transcendent change. Public relations is better than it's ever been before and more effective that it's ever been before. There are reasons corporations are spending hundreds of millions of dollars on communications, and it's because they can influence public opinion to their ends.

 

Now, college students, I think, are typically able to see through a lot of the public relations because they've got time on their hands, and they've got professors pointing this all out to them. And it seems to me that maybe before we send them off to the rat race where they don't have time to keep, and they're prime targets for these influence campaigns, we want to allow them a little bit of a heckler's veto. We want to allow them to call B.S. on the invitees to campus under the guise of intellectual diversity, when really the diversity -- Charles Murray, for example, arguing that black people are inferior to white people is an insult to everybody. And you know what? I like the idea of young people shouting that kind of speaker down. So really, where's the problem here, is what I'm wondering?

 

Prof. Frederick Schauer:  Keith, all yours.

 

Keith Wittington:  [Laughter] Great. So yeah, I have no problem with students calling B.S. when they see it, or criticizing speakers, or making clear that they have disagreements with speakers. My problem is with students who think that they ought to be able to prevent other students from hearing those speakers and engaging in those arguments at all. And I think it's unfortunate even for the students that are critical to not be willing and able to hear the arguments and engage them. They may find that they learn something in that process, even if they have deep disagreements with the speaker in question. But it's really intolerable for those students to then try to prevent everyone else on the campus community from engaging in their own intellectual projects, hearing speakers that they want to hear, and trying to work through a set of ideas that they find particularly interesting.

 

I think there are important conversations being had about who we ought to bring to campus, what kind of debates we ought to have on campus, what kind of ideas should be discussed, and there's room for that debate. But what we ought to insist on is that those who have the authority to bring somebody to campus to speak should have their rights respected. Those people should be allowed to speak unmolested, and people should be able to go and hear them and engage with them on the college campus.

 

Prof. Frederick Schauer:  I mean, for me, it's not so much a matter of their rights, it is a matter of --intellectual honestly requires that you confront or, if necessary, make the strongest argument against your own position, and then understand why that strongest argument is not good enough. I do worry that people are unwilling to confront the best arguments against their own positions and are more inclined toward silencing or going for the jugular. As Keith says in his book, to some extent, although not completely, law schools are somewhat more admirable in this regard. After all, you can't shut down the advocate on the other side, so you'd better get used to listening.

 

Prof. Keith Whittington:  Yeah, I think it's that -- and law schools, I think, are good on this, in part because students come into them with an understanding that part of what they're going to be exposed to are competing ideas, and they have to learn how to see problems from a variety of different perspectives. And so it's useful to then hear a variety of different perspectives, although law schools clearly aren't perfect on this as well. They've had their own problems shouting down speakers, they've had their own problems in terms of intellectual diversity of faculty in law schools. But I would be happier if undergraduate colleges had more of the same kind of culture that is more common in law schools in sort of recognizing that there's going to be disagreements, that it's valuable to see things from all sides, and you've got to listen to what people have to say before you then can mount an effective argument against it.

 

Prof. Frederick Schauer:  Agreed.

 

Anthony Deardurff:  So if you have final thoughts, it would be a good time to share those.

 

Prof. Keith Whittington:  Yes, I would just add one little thing that responds a bit to a point that Fred made about the empirics of what happens on college campuses. I think it would be really useful to be able to collect better data on what kinds of outside speakers are actually coming to college campuses. What's the intellectual diet the students are exposed to on a variety of campuses? I think we have a lot to learn about what that actually looks like.

 

And I recently tried to scratch the surface of that with a piece that I wrote that looked in part at sort of commencement speakers. And commencement speakers are prominent, but I think are not sort of the heart of the intellectual enterprise of what universities do. But they can be controversial, and they are particularly prominent episodes of when the campus comes together to listen to someone. And it's really striking the extent to which one -- campuses are very tiled ideologically as to what kinds of commencement people they invite to give commencement addresses. Republican politicians need not apply to be commencement speakers on American college campuses, whereas Democratic politicians are always welcome to give those same addresses.

 

What's even more striking is lots of campuses have gone to people who are far removed from the world of ideas. The safest thing to do is not only to lean left, but also to move away from ideas entirely, and then invite movie stars, or singers, or businessmen to be your commencement speaker instead because then students might not object to listening to them. And that's very discouraging about what kind of intellectual climate we've created on college campuses where we think that the safest thing to do is to avoid talking about ideas at all. And if that's where we are, then we've really lost sight of what universities are supposed to be doing.

 

Prof. Frederick Schauer:  I totally agree, including the point about graduation speakers. And it seems right to let Keith have the last word. It's a terrific book. You ought to be congratulated.

 

Prof. Keith Whittington:  Thank you.

 

Anthony Deardurff:  Wonderful. Well, thank you so much for your time and for this invigorating discussion. Wes, I'll turn things over back to you.

 

Wesley Hodges:  Wonderful. Well, thank you, everyone, for joining us today. I do want to let everyone know that this call is being recorded to be turned into a podcast. You'll be able to find it on our website, as well as a full roster of previously recorded calls. So we invite you to do that on our website, iTunes, and Google Play. So on behalf of The Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.