The National Constitution Center, in partnership with a coalition of leading free speech organizations, convened a National First Amendment Summit on September 13, 2023, to discuss the increasing threats to freedom of expression and to celebrate the opening of the Center’s new First Amendment gallery. The third panel of the event, “The First Amendment on Campus and Online,” examined the increasing conflicts involving free speech on campuses and online in an age of social media, artificial intelligence, and other new technologies. Speakers included Will Creeley, legal director at FIRE, the Foundation for Individual Rights and Expression; Jeannie Suk Gersen, professor at Harvard Law School; and Nadine Strossen, emerita professor at New York Law School and former ACLU president. The program was moderated by Jeffrey Rosen, president and CEO of the National Constitution Center.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Cooper Smith, Derek Shavell, Yara Daraiseh, Lana Ulrich, and Samson Mostashari.
Participants
Will Creeley is legal director at FIRE, the Foundation for Individual Rights and Expression. He is the co-author of First Things First: A Modern Coursebook on Free Speech Fundamentals and has authored amicus briefs submitted to courts nationwide.
Jeannie Suk Gersen is John H. Watson, Jr. Professor of Law at Harvard Law School. She is also a contributing writer to The New Yorker and has written three books, including A Light Inside: An Odyssey of Art, Life, and Law.
Nadine Strossen is John Marshall Harlan II Professor of Law, Emerita, at New York Law School and the past national president of the ACLU. She is also a senior fellow with FIRE and her forthcoming book is Free Speech: What Everyone Needs to Know.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Will Creeley and Geoffrey R. Stone, Restoring Free Speech on Campus, The Washington Post (Sept. 25, 2015)
- Jeannie Suk Gersen, What If Trigger Warnings Don’t Work?, The New Yorker (Sept. 28, 2021)
- Jeannie Suk Gersen, The Trouble With Teaching Rape Law, The New Yorker (Dec. 15, 2014)
- Jeannie Suk Gersen, Shutting Down Conversations About Rape at Harvard Law, The New Yorker (Dec 11, 2015)
- Jeannie Suk Gersen, The Socratic Method in the Age of Trauma, Harvard Law Review ( 2017)
- Nadine Strossen, Free Speech: What Everyone Needs to Know (Oct. 2023)
- Nadine Strossen, Hate: Why We Should Resist It With Free Speech, Not Censorship (2018)
Excerpt from Interview: Jeannie Suk Gersen on her experience of student self-censorship at Harvard Law School.
Jeffrey Rosen: Jeannie Suk, how are you seeing that self-censorship and fear or conventional disapproval manifesting itself on campus? And what can be done about it?
Jeannie Suk: I began teaching in 2007 and in the years that I've been teaching, everything has changed about the classroom environment. And I now no longer rely on volunteers at all in my classroom discussions because that's just no way to get a robust debate or any kind of a diversity of viewpoints. You might get like diversity from here to here, whereas you would want a wider range of views represented in the classroom. You can't get that by saying, "Okay. Who’s gonna volunteer to say something?" And mainly because of the fear. You get a lot of "Well, I don't think this, but some conservatives might think this." you get a lot of that, a lot of distancing.
… But on campuses today, if you say the phrase, "Both sides," it is inherently coded as either conservative or making excuses for views that are either racist or discriminatory, right? That if you say the phrase, "Both sides," that will lose a large portion of your student audience. And yet, our job as legal educators is to teach students to argue at least two sides of an issue.
And so I've had the experience of saying, "Okay. Here's this case Lawrence vs. Texas. You are going to say Justice Kennedy's view in, in your own words, in the best way you can. And you're gonna say Justice Scalia's view in the best way that you can." And, usually that exercise goes beautifully. It does. But then, you will get the students afterwards who would say, "I felt really traumatized by having to listen to that.”
… I feel lucky to teach at a school, Harvard Law School, where I know that the administration will have my back on matters of academic freedom in the classroom and pedagogy, right? It would never be a situation for me, I feel confident, where if next year if I said, "Okay. What's Justice Scalia's view on this?" Then somehow I'm going to be hauled in and like disciplined or investigated for something.
I unfortunately think a lot of teachers across the country would not feel the same way. And it does depend, sort of administration by administration. Harvard Law School may be different from the Faculty of Arts and Sciences, maybe different from the Medical School or the School of Public Health. Unfortunately, right now, we have a little bit of a training gap, in terms of university administrators. They've in the last 10 years gotten a lot of training and raising their intelligence and their expertise about matters of discrimination and making people feel like they belong, that may not traditionally felt like they've done a lot of that, but now it's time also to put in the academic freedom piece of it, that what diversity means is not just diversity in terms of your race or your ethnicity or your gender or gender identity, but also diversity of viewpoints.
Excerpt from Interview: Nadine Strossen discusses the rise and danger of students self-censoring themselves in the classroom.
Jeffery Rosen: Nadine Strossen, tell us more about the threats on both sides. Are those refusals to pledge allegiance to diversity statements a form of compelled speech? And do you think that the threats on this count are coming more from the right or the left? Or are they on both sides?
Nadine Strossen: Definitely the threats are coming from across the ideological spectrum, including a persistent phenomenon that each side, and I hate to use the word 'sides' because I see all of us as part of a continuum. But many of us see ourselves in tribes and each tribe is happy to complain about censorship that's coming from the other side, but not willing to recognize that they too are engaging in it. Jeff, if I could say, to me, the greatest threat to free speech on campus is coming from students themselves because they are afraid of their fellow students. The peer pressure is so enormous. The latest FIRE and College Pulse survey showed that this is so pervasive that even the schools that have the best free speech culture because the administration was relatively enlightened, the policies were relatively enlightened. There was almost no difference between the top schools and the bottom schools, in terms of student self-censorship.
And that self-censorship I was really startled to see, comes not only in the classroom, but also in individual conversations with faculty members. Also, in conversations with other students. 25% or so, across the board, said that they either very often or quite often are engaging in self-censorship. And the survey had very specific definition, that you fear punishment, either legal punishment or social punishment or even physical attack. So, it was very specific definition. And the most concerning to me, as an educator, 25% of students across the board, at the time that they answered these surveys, they were enrolled in college. Many of them had been there for a number of years, but all for at least a semester. That they are engaging in more self-censorship now, then when they began college.
So, the exact opposite of what we would expect and hope for, that the college experience would be something that would free your mind, that would free your tongue. That would open you to speaking and listening. And that's not happening, unfortunately.
Excerpt from Interview: Will Creeley on the censorship of professors.
Jeffrey Rosen: Let's talk now about the speech interests of professors. And Will Creeley, FIRE is representing Professor Stephen Kershnar at SUNY, the devil's advocate, who was on the podcast talking about the morality of age of consent laws… Tell us about those cases.
Will Creeley: What we've seen in recent years are professors singled out for dissenting views or controversial views on matters of public concern and punished for those views. One shocking case that my colleague, Greg Greubels, in the audience litigated successfully. The case of Dr. Lora Burnett at Collin College, who criticized Vice President Pence during the 2020 vice presidential debate the one with the fly, folks will remember that perhaps.
And said, "Someone tell this guy to shut his little demon mouth up." And she didn't realize it, but Twitter being what it is for good and for ill, boon and bane the visibility of her tweet meant that her local Republican state legislator saw it and that's who we found out later sent a text message to the president of Collin College in Texas and said, "She's on the payroll, right?" And he received a response from the president of the university saying something like, "I'll handle it."
Sure enough, they handled it, right? They effectively terminated her. So, we litigated. And I could go on about it. We've only got 15 minutes, folks I can go on for a solid three hours with stories like Lora Burnett's, from both sides of the ideological isle. And for some folks who are frankly like Professor Kershnar, just ideological gadflies or classic Socratic protagonists who want to say, "Well, why do we think that's bad? Let's talk about it. Let's see what we can figure out about morality by asking questions about deeply held convictions that we have as a society."
Academic freedom should protect all of that. And that's why we're litigating in federal court. We have our appeal. We won a preliminary injunction against Florida Stop Woke Act, which listed eight concepts that teachers were not allowed to "advance" in the college classroom. The college classroom should be precisely the place where we have those debates. These were Governor DeSantis' brainchild. They were designed to target "woke viewpoints." In California right now we're also in federal court with a new lawsuit because California community colleges now have adopted an evaluatory framework, an evaluation framework for professors that measures their commitment and teaching of anti-racist principles.
Now, again, no matter what you think of "woke" or "anti-racist principles," those things should be hotly debated in our public college campuses. That's the whole idea. You start the knowledge generating machine and you back away slowly if you're a legislator. You don't get to push and poke and say, "Well, now we're a blue state so we're gonna say you can't talk about red state things," or vice versa. We're working hard to protect academic freedom, but it's a full-time job.
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