Over the past few weeks, protests on college campuses over the war in Gaza have sparked debate about the extent and limits of student and faculty free speech rights. In this episode, two leading First Amendment scholars, Keith Whittington of Princeton University and Geoffrey Stone of the University of Chicago, join Jeffrey Rosen to discuss the current debates over free speech on campus. They also discuss Whittington’s new book, You Can’t Teach That!: The Battle Over University Classrooms.
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This episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Keith Whittington is William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University. He is currently the chair of the Academic Committee of the Academic Freedom Alliance and a Hoover Institution Visiting Fellow. He is the author of several books on constitutional law and history, including Speak Freely: Why Universities Must Defend Free Speech (2018) and most recently, You Can’t Teach That!: The Battle Over University Classrooms (2024).
Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. He previously served as dean of the law school and provost of the university, and chaired the university's Committee on Free Expression. He is the author and editor of numerous books about the First Amendment and the Constitution, including National Security, Leaks and Freedom of the Press (2021), The Free Speech Century (2018) and Perilous Times: Free Speech in Wartime (2004). His most recent book is Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (2024).
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His new book is the New York Times bestseller The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Keith Whittington, You Can’t Teach That!: The Battle Over University Classrooms (2024)
- Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2019)
- Keith Whittington, "Civil Disobedience Has Consequences,” The Daily Princetonian (May 10, 2024)
- Keith Whittington, “What Can Professors Say in Public? Extramural Speech and the First Amendment,” Case Western L. Rev (2023)
- University of Chicago, Kalven Committee: Report on the University’s Role in Political and Social Action
- University of Chicago, Report on the Committee on Freedom of Expression (2014)
- “UChicago Says Free Speech Is Sacred. Some Students See Hypocrisy,” NY Times (May 2024)
Excerpt from Interview: Keith Whittington discusses the complexities university administrators face in managing student protests, emphasizing the importance of clear communication, understanding student intentions, and maintaining consistent enforcement of rules to avoid perceptions of favoritism.
Keith Whittington: I think it's not an easy question, and part of the challenge is being able to communicate with students and understand what they're actually doing. And so a lot of universities, I think, have become quite sophisticated in anticipating that these kinds of protests are going to occur and other kinds of expressive activities on campus are gonna occur. They try to engage in dialogues with students to understand what the students are trying to accomplish, how far they're really willing to go, what are their plans exactly. Try to communicate clearly to the students as well, what the rules are, so students go into this process understanding what's gonna be allowed, what's not gonna be allowed, what are the consequences for violating them? So keeping open those lines of communication and having conversations before the protest begins, I think is often important and helpful in trying to anticipate then is this going to get out of hand? How far is this gonna go? How serious is the administration really about enforcing their rules? For example, and can prevent some of these things from being a temporary momentary disruption that calls attention to the cause, for example, but really doesn't create serious difficulties for the university and allows everybody to move forward in a relatively reasonable way.
But that's not what students always want, and I think part of what we're seeing now with the encampments with this round of protest is there is a somewhat greater radicalism here in on a lot of campuses where students don't simply want a momentary protest that's going to get attention, but they really do wanna heighten the conflict in order to create more and more attention, in order to extend the controversy to greater lengths. We've seen this on a lot of campuses and how this has played out, but we've seen a version of it here at Princeton as well where students began wanting to create an encampment like elsewhere. Our university told them tents and shelters were not allowed, those were specifically against the rules, but did allow them to bend the rules relative to occupying some space on campus for an extended period of time. Students ultimately were not happy that that was not getting enough attention so they occupied a building for a period of time.
Now they're engaged in a kind of hunger strike in order to attract additional attention to the cause. And so one kind of challenge relative to the University of Chicago, for example, if you give 'em a week, will the students decide, "Well, that's not enough attention. You're not giving us enough, and now we have to do even more in order to get more attention and become more and more disruptive and force a stronger and stronger reaction potentially from the administration," which becomes challenging and difficult.
I do think it's fundamentally prudential judgment is what's going to work. We've seen lots of different kinds of approaches different university presidents have taken to try and deal with the protest. Some more effective than others. And in some places, I think the exact same kinds of efforts have worked much better in some places than others. So Chicago, for example, they made clear to the students what was happening, they gave them a week, they sort of said, "Okay, now we're clearing out," and the students cleared out. In other universities, there's been those kinds of warnings, those kinds of efforts, and then the students didn't clear out, and then the question is, "Okay, now what do you do? At that point." And part of that calculation is how are the students going to react and what are they gonna force you to do under these circumstances? But frankly, I think part of the challenge for university presidents in this environment and also is thinking about what are the faculty going to do? How are they going to react relative to the students? What are crucial stakeholders like the mayor of the city of Chicago and the police department going to do relative to this? How are politicians outside the university environment? Are you in an urban environment in which there are lots of outside people who can easily come to campus? Which is the problem Columbia faced, for example, unlike some other universities that might be more isolated.
And so you're really just dealing with students, which I think creates a different kind of challenge. So I think as a consequence, presidents are in a very difficult situation. I don't think there's a one-size-fits-all as to how you try to manage these situations. And I think it's easy to play Monday morning quarterback on some of these things and say, "Well, they should have done it differently." But when you're in the midst of it trying to make those decisions, I think it's not always obvious what's going to work and what's not going to work, and what in fact is going to make the situation worse, just in terms of the functioning of the university and being able to move on. One last thing, I would just note briefly that both comes out of The University of Chicago example, and the question you just asked, which is about how do you maintain the neutral time, place, and manner regulations, the neutral principles across different protests over time? And one thing Chicago is now confronting, and we're hearing lots of rhetoric about it here at Princeton and elsewhere, I think they're getting similar kinds of arguments being made, is have you now get a one-week encampment rule at the University of Chicago, and so does the next protest that comes along where they want to occupy the quad, and then the university president says, "Well, you're violating the rules. You need to clear out." And they say, "Well, last semester you gave the Gaza protestors a week."
"Shouldn't we get at least a week before we have to clear out." And I think universities can get themselves in a real bind about that. You wanna be somewhat tolerant of students, you wanna give them some grace period and wiggle room in these situations, and you need the prudential maneuvering room to deal with different kinds of circumstances. But if you're not careful, you're gonna find yourself in a situation in which it looks like you're playing favorites. And you look like, well, we said we had some rules but we're actually not gonna enforce those rules against everybody. And students, I think quite rightfully will find themselves starting to complain that the rules seem to be very selectively enforced depending on how much support the students have and how sympathetic their cause seems to be.
Excerpt from Interview: Geoffrey Stone argues that the government cannot dictate what private university professors teach due to the First Amendment but has some authority over public university professors.
Geoffrey Stone: So, first of all, to be clear, I think the government cannot constitutionally dictate what private universities or professors in private universities can and cannot teach or write or say. That clearly would violate First Amendment. The more complicated question, as Keith notes, is in public universities, because they are part of the government. And in general, the government is allowed to regulate its own employees insofar as they are performing their professional responsibilities in ways that it cannot necessarily regulate private individuals, particularly with respect to free speech. So the question there is to what extent the government does have authority to regulate the expression of its public employees both on the job and outside the job. Outside the job, I think the answer is very little, I think that basically government cannot regulate what government employees can say when they're acting outside their official capacities, including obviously professors and scholars and so on.
But when they're acting within their professional responsibilities, it's much trickier. And you can obviously tell a Chemistry professor that you cannot teach your class about History, that's not appropriate. The more complicated question is, can you dictate or prohibit certain viewpoints from being expressed by the professors particularly in the context of the educational process. And there's not yet, I think, a perfectly clear answer in the law. The Supreme Court has been cautious about allowing the government to do that, to engage in particularly viewpoint-based restrictions, in a number of cases, it has held unconstitutional laws of public universities that specifically distinguish between different points of view in terms of what's permitted or not. For example, in one case, the court held that a public university cannot constitutionally fund student organizations other than religious organizations.
And presumably it would be unconstitutional for a public university to fund pro-Israeli or anti-Israeli organizations not the opposite. I think that too would be regarded as a violation of the First Amendment. And similarly, I think in terms of the dictating what ideas can be taught, I think the court would be highly skeptical of the constitutionality of the government making those decisions, just as, for example, it has held that a public school cannot remove books from the library because of disagreement with the viewpoints expressed in those books. So I think these are complicated issues, 'cause here we're talking about government employees, and government employees are in their professional duties like private employees subject to the regulations of their employer, but the First Amendment does have a role to play here, and my guess is that the court should, and hopefully will play an important role in limiting the extent to which government can dictate what positions professors and institutions can use to educate their students in an important responsible manner.
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