We Have a Free Speech Crisis. It’s Not the Students
Photo by Gayatri Malhotra on Unsplash
A shorter, updated published version is available here .
A recent event sponsored by Stanford Law School’s Federalist Society went viral. Many weighed in—including numerous law professors. We write not to comment on the event itself. Rather, we write to share our concern about much of the commentary and condemnation that followed. Many predictable aspects of this response reflect troubling dynamics that have come to define our public conversations about free speech in America.
Misdiagnosing the Free Speech Crisis
Many commentators suggested the Stanford incident reflected a “free speech crisis” sweeping our university campuses. This framing mischaracterizes the incident (in which an invited speaker confronted heckling students but was able to speak to a willing audience) and misdiagnoses the threat (which has little to do with protesting students).
For the past three years, one of our country’s major political parties has governed on a platform of anti-democratic censorship. The record is not in dispute.
Over 600 local, state, and federal bills designed to chill basic conversations about racism, sexuality, and related topics.
Thousands of book bans—most of which target stories that dare to include characters or topics seen as outside of the American “mainstream.”
Coordinated campaigns to defund or shutter public libraries.
Systematic efforts to eliminate fundamental safeguards that protect academic freedom and university independence.
Renewed efforts to disenfranchise voters, criminalize protest and erode reproductive healthcare.
The Jim Crow-styled expulsions of Black elected officials.
The proposed selective pardon for a convicted murderer because he killed a #BLM protester.
There is a free speech crisis facing America. There is a democracy crisis facing America. Yet many who claim allegiance to these values exhibit more concern about shouting students than authoritarian governors. Many who jump to insult a well-intentioned administrator seem unmoved by efforts to purge entire canons of intellectual thought from our universities. Many who spent years berating “cancel culture” remain silent as a political party makes cancel its brand. The silence is deafening. The dissonance is indefensible.
Universities Are Not Neutral, Nor Should They Be
Many have suggested that the university must remain a “neutral” actor. This is true, but only to a point.
As a “sovereign,” the university often may not suppress viewpoints with which it disagrees. But universities are also “speakers,” with an independent mandate to promote teaching, research, and the pursuit of truth.
As a “speaker,” the university need not be neutral, nor should it. When an invited speaker professes a viewpoint that contravenes the university’s mission, the institution can—and should—take sides. We wouldn’t expect a biology department to stay silent when an invited speaker promotes creationism; we wouldn’t expect a Jewish Studies department to remain silent when an invited speaker denies the Holocaust. Simply stated: “No one thinks that universities need to be agnostic about whether the Earth is round or less than 10,000 years old.”
As “sovereign,” the university should protect the right of an invited speaker to speak. But as “speaker,” the university has every right to forcefully proclaim its values.
Doing so is often imperative when a speaker impugns the basic dignity and humanity of students, faculty, or other community members. To their credit, many colleges and universities mark diversity, equity, and inclusion (“DEI”) as core values and endeavor to create and cultivate campuses where all students are welcome and respected. Beyond values, universities have a legal duty to create an equal learning environment in which every student—regardless of their identity—can enjoy the full benefits of university membership. When an invited speaker traffics in discourse that delegitimates certain students or their very presence on campus, the university can and should counter those viewpoints with its own speech.
This is particularly true in a moment marked by rising attacks on people of color, LGBTQ+ people, and religious minorities. Neutrality in such a climate is an illusion. Those who shout “Indoctrination!” to discredit equality-oriented projects know this well. Their goal is not a university without values. Their goal is a university with different values, indeed a society with different values—values anchored in an era when people of color, LGBTQ+ people, and women of all backgrounds had no seat at the table. This is evident in rising attacks targeting DEI itself, including the predictable demand that Stanford Law School fire its Associate Dean for DEI.
Selective Indifference
Following the Stanford incident, we heard a now-standard refrain that conservative students and faculty are unable to freely express their opinions on campus. This concern is often accompanied by the claim that conservatives are underrepresented, that they are ostracized for their views, and that bias toward their group creates an unfriendly environment.
Many of us identify with left-leaning projects. But we have no qualms stating that all students–whatever their ideological priors–should feel welcome and valued on campus. Many of us consider the classroom a sacred space that requires trust, empathy, and generosity on all sides. That much should be taken as given.
But we are troubled by a discourse that so easily centers the subjective feelings and experiences of conservative students after decades of rejecting similar concerns from students of color. For years, many mocked “microaggressions” and ridiculed “oversensitive” students as “snowflakes,” supposedly “coddled” by their universities. Yet many of these same individuals now articulate their grievances in the register of “microaggressions”—taking issue with any slight that would signal an unwelcoming environment to conservative perspectives. Indeed, concern about student “discomfort” is precisely how many officials have justified “anti-CRT” laws that prohibit basic conversations about race and racism in the classroom. This observation is not an invitation to fall into false equivalences. Rightwing thinktanks and foundations weaponized concerns about students’ feelings, “wokeness,” and “parents’ rights” not to protect students or promote speech. This is a censorship campaign designed to purge institutions of the policies, principles and people who believe in civil rights for all.
We are accordingly troubled by the suggestion that universities should treat all viewpoints as equally valid. Outdated tropes that presume the moral or intellectual inferiority of a racial group are morally repugnant and—we should emphasize—empirically unsupportable. The fact that a political party embraces a viewpoint does not make it sound or off limits from critique. Some unpopular opinions deserve to be unpopular. The university’s job is not to protect students or faculty from having to defend their opinions.
Disdain for Students
We are also troubled by the disdain and condescension directed at law students for engaging in acts of protest. Following the Stanford incident, commentators ridiculed the student “mob” as “thuggish,” “psychotic” and “grade inflated imbeciles.” Such caricatures reduce students to intolerant and oversensitive children. One need not stretch to find unflattering parallels with the belittling condescension Tennessee’s House GOP directed at Black Congressmen Justin Jones and Justin Pearson for “breaking decorum.”
Even among those commentators who did not resort to petty insults, many admonished the Stanford students for protesting the wrong way. We understand. As a purely strategic matter, many of us might have counseled a different approach. When a speaker’s goal is to provoke outrage, even thoughtful protest can “feed the troll.” Still, we are troubled by law professors who simply scold students for protesting the wrong way. Students might be younger than us. Students might know less law than we do. But students are sophisticated problem solvers who deserve our respect. They understand the existential crises confronting their generation, their democracy, their planet. They recognize a lawless Supreme Court that privileges dogma over doctrine. They know that power all too often trumps persuasion.
We might not like how our students protest or what our students say. But if we believe in persuasion over coercion, our job is not to scold. It is to persuade our students that a different path is preferable. If we fail, perhaps we should interrogate our own arguments and assumptions before blaming a generation for demanding the world they deserve.
Self-Governance and Academic Freedom
In 1915, the American Association of University Professors (AAUP) wrote that academic freedom is “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion, and of teaching, of the academic profession.” Today, right-wing voices in politics, in the media, and in communities around the nation have strayed alarmingly far from this classic understanding; instead, seeking to undermine academic freedom at every level of American education, from kindergarten to college and beyond.
Too often supposed concern for free speech masks a deeper agenda: to silence minority voices by any means convenient or necessary, including by destroying long-standing norms of academic self-governance. Florida governor Ron DeSantis’ takeover of New College is a chilling example. As the New York Times reported, the DeSantis playbook includes attacks on faculty tenure and investigations into teachers’ political views.
In September 2021, Johns Hopkins President Ronald Daniels wrote a Washington Post op-ed titled: “Why authoritarian regimes attack independent universities.” Daniels focused on foreign authoritarians spanning the Taliban and Hungary’s Victor Orban, to Mussolini and Nazi Germany. But his insights increasingly—alarmingly—resonate with domestic threats to university independence coming out of states like Florida, Texas, and Tennessee. We should heed Daniels’ final words: “As the tragic saga of the American University of Afghanistan shows, universities truly committed to inquiry, dialogue and truth-seeking rise and fall with democracy — and democracy rises and falls with them.”
The Critical (Legal) Collective
Contacts for this Statement:
Jonathan Feingold, Associate Professor, Boston University School of Law (jfeingol@bu.edu)
Angela Harris, Professor Emerita, University California, Davis School of Law (apharris@ucdavis.edu)
Athena Mutua, Professor of Law, University at Buffalo School of Law (admutua@buffalo.edu)