Higher Education Webinar: Free Speech on Campus

Wednesday, August 24, 2022
Boston Globe/Getty Images

Executive Director, National Center for Free Speech and Civic Engagement, University of California

Maria Casa

Director, National Program and Outreach Administration, Council on Foreign Relations

Academic and Higher Education Webinars, Renewing America, and Diamonstein-Spielvogel Project on the Future of Democracy

Michelle Deutchman, executive director of the National Center for Free Speech and Civic Engagement at the University of California, leads the conversation on free speech on campus.

CASA: Welcome to CFR’s Higher Education Webinar. I am Maria Casa, director of the National Program and Outreach at CFR. Thank you all for joining us.

Today’s discussion is on the record, and the video and transcript will be available on our website, CFR.org/academic, if you would like to share them with your colleagues. As always, CFR takes no institutional positions on matters of policy.

We are delighted to have Michelle Deutchman with us to discuss free speech on campus. Ms. Deutchman is the inaugural executive director of the University of California National Center for Free Speech and Civic Engagement. Before joining the center, she served as a lecturer in law at the University of California, Los Angeles and as the Western States civil rights counsel and national campus counsel for the Anti-Defamation League. As national campus counsel, Ms. Deutchman trained campus stakeholders, including administrators and law enforcement, on how to safeguard free speech at universities, while simultaneously maintaining a safe and inclusive campus climate.

Welcome, Michelle, and thank you very much for speaking with us today.

DEUTCHMAN: It’s great to be here. Thanks for having me.

CASA: Can you begin by giving us an overview of issues relating to free speech on college and university campuses in the United States, and then maybe a quick word about your center?

DEUTCHMAN: Absolutely. Thank you so much. Good morning, or maybe it’s good afternoon. I guess it depends on which time zone you’re in. I’m in California, so we’re just a few hours into our day. I want to begin by extending my thanks not only to Maria, but to the whole National Program and Outreach team at the Council on Foreign Relations, for providing me the privilege of talking with all of you today about the interesting and complicated topic of expression on campus.

Before we dive into the issue of campus climate, the questions of self-censorship, the use of the heckler’s veto, and the increasingly dangerous threats to academic freedom, I do want to share some background about the formation of University of California National Center for Free Speech and Civic Engagement. If you can stretch your memories all the way back to 2017, which in some ways feels like a million years ago, that year we witnessed some high-profile campus speech controversies, including Milo Yiannopoulos at Berkeley and Charles Murray at Middlebury, both of which resulted in violence and property damage. That was also the year the Goldwater Institute introduced its model campus expression legislation and the press heralded headlines about a campus speech crisis.

In July 2017, Berkeley Law Dean Erwin Chemerinsky and UC Irvine Chancellor Howard Gillman, both later named as co-chairs of the center’s national advisory board, published the first edition of their acclaimed book, Free Speech on Campus. August 2017 also witnessed the Unite the Right rally in Charlottesville, a gathering that reframed white supremacy and its ongoing role in American democracy. Recognizing both the significance of that moment and UC’s rich legacy of involvement in the free speech movement, then-UC president Janet Napolitano founded the center.

The center’s role is to explore the intersection of expression, engagement and democratic learning, and to consider what can be done to restore trust and the value of free speech on college campuses and within society at large. The center’s home within the greatest public university system and our focus on current challenges, viewed through the lens of higher education, makes us unique, as does our pragmatic approach to our work. We are committed to educating administrators, staffs, students, faculty, and others, and to creating resources to help them navigate the uncharted legal and campus climate issues they face daily. We do this through our fellows program, our events, our national conference, our podcast, and our Voice Initiative. All of our programs and research are offered at no cost, in order to ensure accessibility by the largest number of people. If you’re not already familiar with our work, I urge you visit our website or connect with me directly.

The center will celebrate its fifth anniversary in October. It is striking now even in such a short span of time the higher education expression and engagement landscape has transformed. Five years ago, there was a focus on questions pertaining largely to outside speakers bringing provocative and offensive ideas to campus. Why were public universities obligated to allow someone like Richard Spencer to speak on campus? How could they simultaneously allow the speech to go forward and also make clear that the speaker’s message was antithetical to the institution’s core values? How much did public entities have to pay to ensure the safety of these speakers? And what were the lines between protected protest and unprotected disruption?

While we face some of these same issues today, I believe that the stakes have increased exponentially in the past five years. Higher education has been drawn into the culture wars and into today’s deeply polarized public debates. The increase in state legislation that uses “protecting speech” as a pretext to censor books on library shelves and ideas in elementary, secondary, and post-secondary education classrooms is not only a tremendous threat to academic freedom and the university, but also to the democratic norms that undergird our society.

Before we dive too deeply into the weeds—and I do love to get into the weeds—I want to go back to some basics. Because I’m a believer that a major contributor to the expression issues on campus and in society at large is the lack of fundamental understanding about the First Amendment. A 2020 Freedom Forum survey of 3,000 Americans found that 18 percent of participants were unable to name even one of the five freedoms guaranteed in the First Amendment, and only 9 percent could correctly identify all five, which hopefully you’re thinking through right now. It’s speech, religion, press, assembly, and petition. Similarly, many people did not understand that the First Amendment protects individual speech from censorship or retaliation by the government, which of course includes public institutions of higher learning.

While private universities are not required to follow the First Amendment jurisprudence, except in California, most abide by First Amendment norms in order to fulfill their missions. Over the last two decades, in every workshop or training I have facilitated—whether for students, staff, law enforcement, faculty, or administrators—people in the audience are surprised to learn that the First Amendment does not apply to regulation of speech by private companies, including social media platforms. And while harassment, defamation, threats, and a few other narrow categories of speech are not protected, hateful speech is. The Freedom Forum survey reported that only 56 percent of respondents—that’s just a little more than half—knew that the First Amendment protects hate speech.

In our K-12 education system, students have far fewer speech rights than at college. In those early years, the court talks about how schools are acting in loco parentis. You might end up in detention for using profanity or have a visit to the principal’s office of you are mercilessly teasing another student. As the parent of young children, I spend an incredible amount of time talking about words, their power and impact, about the value of being an ally. Then we take these students, who’ve been raised on anti-bullying curriculum, and we drop them off on large public campuses, oftentimes without information about how speech at college is treated differently. And then we’re surprised when these young adults are outraged that speakers are allowed to share demeaning, racist, homophobic, or antisemitic speech.

I don’t subscribe to the theory that the youth of today are snowflakes, too sensitive, or too thin skinned. I think they are a product of how they’ve been educated. And in the case of the Constitution, their lack of education. Understanding the fundamental concepts, however, is only the initial step. When a representation of a Nazi flag or a noose appears in a dorm common area, on a bulletin board, at the student center, or in a Twitter post by a member of the campus community, the school’s response of “we can’t stop this ugly speech because of the First Amendment” isn’t going to cut it. Rather, there has to be an acknowledgement that there is a high cost to freedom of speech. We know that hateful, hurtful speech has a disproportionate impact on women and people of color, members of the LGBTQ community, and other marginalized groups.

Recognizing the negative impact of such speech on a campus community allows the discussion to move toward what I see as seminal questions: Why are we willing to pay this high price? What would society look like if we weren’t? And how can we effectively respond to speech that we find offensive or without value? While campus leaders may be unable to stop hateful speech, they have the ability—and, I would argue, the responsibility—to use their speech rights to respond to ugly speech that unsettles the community and undermines vital institutional values, like inclusion and equity. While there is no formula for an effective and meaningful counter-message, or for deciding when it’s required and from whom, here are a couple key points to keep in mind.

First, be specific. General statements about how hate is harmful will fall flat. Biased speech targeted at particular groups instills fear and exclusion. Effective counter-speech names the specific hate speech directly to the targeted group and emphasizes how the hateful language doesn’t comport with the institution’s values. Second, focus on safety and inclusion. Let members of the targeted group know they’re safe and a critical part of the campus community. University and college leaders should emphasize inclusion, what the campus is doing to ensure that members of the targeted community are safe, and how students and others can access counseling and other resources. And, third, be prepared. Ideally, a diverse group of stuff, students and administrators will regularly meet to discuss inclusion challenges and efforts, free speech policies, ways to build dialogue across conflicting groups, in preparation for protests and other events.

Just like we teach foreign language, mathematic equations, and how to write a well-structured essay, we need to do a better job teaching about expression and its role on campus. This also applies to how to dialogue across difference and how to be engaged members of our democracy. These are skills that have to be practiced and inculcated. A one-and-done, fifteen minutes at freshman orientation isn’t going to do it. It has to be integrated not only into extracurricular, but into curricular requirements throughout undergrad and graduate studies. As a First Amendment advocate and attorney, I know how important rights are. However, I worry that we are often too rights-focused. We are so concentrated on the you can’t take away my rights part of free speech, I’m allowed to say this, and you can’t stop me, that sometimes we forget the flipside of the coin—responsibility.

Just because you have the right to do something doesn’t mean you should. Framed another way, we’re looking at the classic Spiderman problem, as articulated by Peter Parker’s Uncle Ben, “with great power comes great responsibility.” Choosing if and when to censor—I prefer the word “edit”—ourselves should be a key part of engaging in a community of learners. Colleges and universities have the unique opportunity to both foster and model the concept that free speech does not mean the absence of consequences. The idea is especially vital given the transformational societal changes we have witnessed with regard to accessing information and learning to determine if that information is credible and trustworthy.

We are now part of a world that is replete with challenges to truth, science, and evidence-based reasoning, all of which are at the heart of higher education and democracy. Much of what happens inside the academy today is a result of the world outside of it. College is no longer the kind of insulated bubble it used to be when I attended Berkeley in the 1990s. And I know I’m dating myself. In those days, there was no internet. And if I got information, it was either from the newspaper, my professors, or my peers. That’s clearly no longer the case. Social media and its ability to launch or cancel someone, the advent of a 24/7 news cycle, and the unlimited number of sources that influence students creates unique challenges vis-à-vis expression.

Addressing campus speech concerns cannot be done separate and apart from larger social, political, and economic issues. Approaching these challenges will require a dedication of resources, time, and energy. It will necessitate collaborative and innovative approaches. However, I don’t want us to lose sight of the fact that every day around the country, in classrooms, quads, and dorms, they are filled with discussion, disagreement, and robust inquiry. Again, thank you for this opportunity. I’m looking forward to dialoguing with all of you.

CASA: Thank you, Michelle, for that introduction. Now let’s open it up to questions.

(Gives queuing instructions.)

Michelle, while people are gathering their thoughts, could you talk a bit about academic freedom and how it relates to free speech on campus?

DEUTCHMAN: Sure. Thanks. That’s a great question. So, actually, a lot of people use free speech and academic freedom synonymously. But actually, they are kind of distinct concepts. And when you think of a Venn diagram, and I kind of can’t believe I’m making a math analogy, we have two circles, free speech and academic freedom. And in the middle is the place where they overlap. And really what sets academic freedom apart from free speech has to do with disciplinary expertise. So when we’re inside the classroom, you don’t just get to talk about anything that you want. You don’t just get to write an essay on anything you want. It’s evaluated based on peer review, on disciplinary expertise.

So, for instance, if you’re a professor and you’re teaching astronomy, and you want to talk about the moon being made of green cheese, you might not be allowed to do that. Now, you can stand out in the public park and do that, but not in the classroom, because academic freedom is going to be based on what the underpinnings are in your disciplinary expertise. So that’s a place to start. So sometimes something is both free speech—covered by both free speech and academic freedom. And sometimes it’s just one or the other. And then sometimes it’s none of the above.

CASA: Thank you. We’ll go onto listener questions. We have Lucy Dunderdale Cate, who’s raised her hand. She’s the director of executive communications at the University of North Carolina at Chapel Hill. Lucy, please go ahead.

Q: Hi. Yes, Michelle, I wanted to get your thoughts on just the Kalven Report with the University of Chicago. And your thoughts—particularly, you mentioned just about the idea of how universities and administrations should talk about free speech issues in terms of the university kind of arena for these ideas to kind of compete. But at the same time, and the Kalven Report talks about this, the values of the university that the university wants to be able to protect and talk about that. And I know you mentioned this briefly, but I would love for you to just hear—to give some examples or ways that you’ve seen that kind of work well for universities to comment on this issue.

DEUTCHMAN: OK. Thanks. That’s a great question. I’m going to just start by making—in case not everybody knows what the Kalven Report is, I’m just going to quickly explain. That it was in—sort of during the Vietnam War, when people at University of Chicago were pushing administrators to either speak out on behalf of the war or against the war. And the then-president said: Let’s get a committee together to talk about what role does the university have in commenting on social and political things that are happening. And the Kalven Report then came out, and it largely talked about the importance of being sort of neutral when it came to, like, social and political events.

And I think that—it’s so interesting to me, because here we are, like, fifty-plus years later and we’re still having a similar discussion about what is the appropriate role of universities. And I don’t want to seem like a cagey lawyer, but I think some of it depends. I mean, I think it’s too black and white, it’s too binary to say universities can never respond to things that are happening in the world. I think part of that is because the world is really different than it was fifty-five years ago. I think, Lucy, the devil is in the details in terms of determining—because there are all kinds of layered questions, right? Which is, once the university speaks out on one thing, does that mean you have to speak on every single similar event? How do you make those decisions?

And I think—I think that’s hard. And I think that there’s—and I can include this in the resources—some interesting writing about what those guideposts are. My feeling is that there is a role to do that. And I think the role is if it’s going to benefit the community—that’s one of the things Dean Chemerinsky wrote about. I think one of the most effective places is in response to bias incidents. And bias incidents, I mean largely speech that might be protected by the First Amendment but still has an impact on the community, as opposed to, like, a hate crime. I mean, if someone vandalizes the LGBT student center, you need to speak out. But that’s criminal activity, right? But if somebody puts up posters about a speaker that’s coming, and perhaps it says something insulting about a particular group. And for whatever—you have to evaluate it, whatever. Maybe it goes viral. Maybe alumni are calling. Maybe students are protesting.

I think that it’s appropriate for the person really at the highest level to use their voice and say why the message—even though it’s protected by the First Amendment—is antithetical. So I think it’s most effective when we’re dealing with those kinds of things. I think it gets harder—this has been an interesting issue post-Dobbs. There one person on Twitter who’s basically captured all of the statements by different universities about the Dobbs decision. Everything ranging from, University of California saying that’s antithetical to its mission, to other places saying—President, I think, Wilson in Iowa said: I’m not going to give my opinion because I don’t want to chill speech. To some schools in between. I think Yale and Princeton sort of saying, we’re going to look into it and get back to you.

I don’t know—I don’t know if that answers your question, Lucy. But I think it really is very specific. And I vote for universities using their voice. And I understand that that may come with some of the risks. Like, is it possible that if a university speaks out about the Dobbs decision and says that it’s antithetical to its mission, is that possible that it would make some students who support the Dobbs decision potentially uncomfortable? I think so. But I think being uncomfortable, whatever side of the aisle you’re on, is part of being in higher education.

Q: Thank you. Yeah, that’s really helpful.

CASA: Our next question comes from Beverly Lindsay, coordinator and principal investigator at the University of California. Beverly.

Q: Can you hear me now?

DEUTCHMAN: I can hear you.

Q: Great. I have two questions to ask you, Michelle, especially since I’m in the UC system. Our grant is Riverside, UCLA, Irvine, and we work with Cal State San Bernardino.

When I teach sociology of higher education at several universities, we’ve used works like Woodrow Wilson when he was president of Princeton University. And of course, his name has been taken off a number of sites now. So the students were told that they could read the actual words of then-University President Wilson. However, if they go out into the public sphere, whether it’s at Penn State, Georgia, Hampton, or elsewhere, to me that becomes an issue of free speech. So there’s an intersection, but are they separate? Same thing if we’re looking at Spike Lee’s Malcom X and the language he used, that the Black Student Association then goes outside a classroom or a forum and uses the same language. How does that play out?

And then my second question, the original land-grant university for California was Berkeley. And it also now includes Davis and Riverside. Do the different types of universities in the UC system—do you see free speech playing out differently?

DEUTCHMAN: OK, thanks. I do have a clarification. I wasn’t quite sure with Woodrow Wilson you’re saying that they’re allowed to talk about Woodrow Wilson within the classroom, but if they go outside the classroom then there might be consequences for that? That’s the part I missed.

Q: That’s exactly the case. Because, for example, Woodrow Wilson in his writings—and he had problems with the NAACP when he became president because of his statements as the president of the nation and when he was at Princeton. And I tell my students that if he wrote it, and we’re discussing it in class, then they can use that language because how were people in 1910 hearing that language?

DEUTCHMAN: OK. All right. So what you’re really putting your finger on is not just—it’s a huge issue. And we’re talking about pedagogy inside a classroom and how that works vis-à-vis academic freedom, free speech, and then also creating a safe and respectful environment. So I just want to acknowledge that there’s lots of conversations about this, about whether it’s reading things that have the N-word, whether it’s reading certain authors, whether it’s reading certain documents from history. I mean, I don’t think there’s any presiding—one presiding deal, OK?

So I think it first starts with setting standards within the classroom. I think it’s really important. And I’m sure you already do this, but to make sure students understand the framework with which you’re going to use language and perhaps to work together to create some kind of roadmap about what it means to have a respectful, open, robust dialogue, so that you can kind of go back to that. I also think it’s OK to distinguish life inside the classroom, academic inquiry, might be different than life in the quad, outside the quad. And so that they should be aware of that.

I haven’t heard—it would surprise me if someone went out into the quad and was talking about Woodrow Wilson and then received some kind of official sanction at a public university. I can understand what you’re saying, that it might be—one of the big issues is peer-to-peer kind of shaming that can happen about discussing certain topics and so forth. But I haven’t really seen a dichotomy so much between people being one way in the classroom and being outside in the world. I think it’s pretty clear that different environments, speech can have different impacts.

And in terms of the UC system, that’s a really great question. And I would say it’s very campus specific. I mean, so in some ways I don’t think that it—I think the kinds of issues that come up in terms of extramural speech by professors, protests by students, bias incidents, and whether—and how to respond to them, those happen on all UCs. But kind of each campus might have its own focus, right? So at Davis and Santa Barbara there’s been a tremendous amount of cost of living adjustments and dealing with housing and certain kinds of issues. So it might come out in a different—in a different way.

But ultimately, the First Amendment applies on the campuses the same. And the same kind of constitutional issues, like time, place and manner restrictions, and what public universities are allowed to do to regulate speech, those are the same.

CASA: Thank you.

Our next question is a written question. It comes from Ahad Din at Dallas College-Brookhaven, who asks: Where are the courts on the actions of states that seem to violate the First and Fourth Amendment protections? I added the fourth due to email seizures and full faith being denied to a class of Americans, in parentheses, faculty rights.

DEUTCHMAN: OK. Are you kind of referring to the courts on the legislation that I was referring to? Legislation is, like, monitoring what can be taught and what can be said in classrooms specifically? Oh, I guess it’s a written question. So I’m just going to talk about how there are some court cases that establish sort of the Supreme Court in a case called Sweezy v. New Hampshire established the parameters of what academic freedom is, and what can be taught, how it can be taught, publication and research. In terms of the courts, I guess what’s coming to mind for me right now is the recent cases that have been filed against states that are producing the legislation. You know, whether you want to say it’s the ‘Don’t Say Gay’ bill in Florida, or the WOKE Act, or other legislation that’s targeting critical race theory.

And so far we’re—this is sort of a new development. And, unfortunately the law can sometimes lag behind. Just last week one of the judges basically enjoined the employer piece of the WOKE Act in Florida. And there was just another case that was brought against the public educator piece of it. So—and there was the ACLU I think brought one of the first cases against CRT legislation. And I think that’s moving. So I think we’re seeing it happen. I think one of the problems with the law is that it’s a very blunt instrument. And while it goes all through courts, and maybe goes up to the state Supreme Court, or the United States Supreme Court, in the meantime teachers and students have to make decisions day-to-day on the ground. And I think that’s really the hard part.

Is like, if you’re a librarian who’s told—and they have been told these things—you’re not allowed to direct patrons about how to get information, for instance, about abortion, if you’re in a no-abortion state now, you risk losing your license, losing your livelihood. And, do you take that risk while you wait for things to go through the court? I ultimately think that these laws are going to be found to be unconstitutional, for many, many reasons. But I think the hard part is what do we in—what do we do in the meantime, as we’re trying to educate folks not just in K-12, but in higher education. Are we going to lose years of those opportunities to talk about these important kind of ideas?

CASA: Thank you.

Let’s take our next question from Margaret Lewis, who’s at Seton Hall University. Margaret.

Q: Hi. Thanks so much.

I, too, am a law professor, but most of my work is dealing with human rights and China and Taiwan, and places that we’re seeing the reverberations of concerns in those countries playing out on campuses here. So, for example, issues with students who identify as Uighur having some negative interactions with their classmates in their—during speaker visits, and whatnot. As well as just also that we’re having a lot of concerns about the way that U.S.-China tensions are playing out on our campuses. So do you have any advice on particular not just about China, but any time that we have a situation where foreign students and domestic students might be grappling with some really emotional issues, and they haven’t necessarily come up through the U.S. education system, that would be really helpful. Thanks.

DEUTCHMAN: Thanks, Margaret. I think that’s a great question. And I have not had as much experience dealing with international students, but I think the first step is—you’ve raised it. I think it’s one of those things that a lot of people aren’t thinking about and aren’t aware of, which is that, how often the things that are happening in our global world are impacting students on campus. One example I can think of, I don’t know if people are familiar with it, but there was something at George Washington University that happened, when there was a flyer about the Winter Olympics in China. And it was sort of a political flyer.

But one group of students felt that it was sort of racist and anti-Chinese. And there was some discussion about taking it down. And then it kind of came to light that actually it was a political flyer, right, that was expressing views about the Chinese government, and so it stayed up. And so I think it’s even sometimes hard for people to—in this case, we are talking about people at a very high level of a university—identifying what’s propaganda, what’s political speech, what’s hateful speech, and, again, remembering, you know, do you take it down, do you keep it up?

I think mostly—I think awareness. I think it has a lot to do with, like, understanding: OK, who is your population on campus? Where do they come from, right? And what is their background? Just to be aware about students who may be coming here and be concerned, right, that the government from where they live, might be following what they’re doing, thinking about what they’re doing. So I think it’s really about trying to educate people. You know, so many people don’t know about the situation of the Uighurs. And so if a student were to bring that to a TA or to someone else, would that person even understand what that is?

So I don’t know that I have any great examples off the top of my head. I will give it some more thought. But I think it really has to do with sort of knowing your population and making sure that staff and faculty kind of understand. And then also making sure that we don’t want to make the people in the marginalized groups do extra labor, right? We don’t want to be saying, oh, we really want to know about what’s happening in China. Because you’re an international student, we’d love for you to tell us about X. You know, the same way they used to teach in K-12. When you have one Muslim student in the class, one of the worst things you can do is say, oh, well, you’re Muslim. Why don’t you tell everybody in the class about how your family celebrates the holiday, right? We think that we’re doing them a favor, but really we’re potentially making them feel more othered.

CASA: Thank you.

Our next question will come from Michael Pelletier, executive director of the Institute for Global Engagement at the University of Houston. Michael.

Q: Hi. I just wanted to sort of take that international question and flip it a little bit to the other side. I liked what you said early on about educating students as they transition from high school, to college, and university, and how that’s a very different reality. And I’m thinking about our responsibilities as universities, as we send our students out into the rest of the world for learning abroad, et cetera, where these First Amendment rights, rights of free speech, even academic freedom are sometimes not at all recognized, or sometimes recognized but very differently. And I wondered if you had any thoughts about how we might prepare our students for that, while recognizing their First Amendment rights, but recognizing also that they’re going to places where that might cause problems.

DEUTCHMAN: Thanks, Michael. I think that’s a great question. And I fear I’m going to sound like a broken record, but ultimately, I think what underlines all of this is education. So I think the first thing is we need to make sure that our students understand what their free speech rights are in the United States, right? And only there can we then discuss, for instance, OK, you might be going somewhere else where actually hateful speech is punished, right? If you go and study abroad in Germany and other places in Europe, Holocaust denial is punishable. So I think it’s both levels, you know?

And, again, I know folks, administrators at universities, get anxious when we talk about mandatory things. But part of me is like, OK, I studied abroad. No one discussed anything with me. I mean, this was a million years ago. But, OK, how about if you’re studying abroad with your university then, you know what, there is one one-hour session or Zoom where you’re talking about just those things. Which is, like, remember, this is what it’s like here and let’s talk about how it might be different and what some of the consequences might be if you exercise your free speech rights the same way that you would have done in the United States. What is your role, right, as a representative of the university, and so on. I think it’s all about sharing that information because I’m betting that lots of students aren’t even giving that a thought. And I don’t know that I would have at nineteen. So I think it’s never too basic.

CASA: Thank you.

Our next question’s a written question. It’s from Laurette Foster of Prairie View A&M University. The question is: Who at the university level determines the thin line between having the right of free speech and not the best choice to exercise free speech?

DEUTCHMAN: You know, it’s interesting, I’m not sure that the administration gets to make that decision because usually I don’t think it’s—I guess I’m maybe not understanding the framing of the question. I think the point of a public university, and part of what is challenging about it, is that there is basically—you have to work really hard for speech not to be protected, right? I mean, there are some categories. And that could be its own session. You know, threats, defamation, harassment, incitement to, like, illegal activity. But the way that it’s structured in our constitutional jurisprudence is that we err on the side of protecting more speech.

So I would say that the majority of issues that I read about, think about, hear about, train on, are issues where the speech was protected, and where administrators can’t make that determination. And that’s one of the challenges, I think, that many administrators share. So you go into student services because you want to work with students, you want to help them through the challenges of college life, both academically, socially, emotionally. And you create trust with those students. And then some speaker, you fill in the blank of someone that you wouldn’t want to hear speak, comes to campus. And that administrator has to hold the line and say: That speaker is allowed to come here. And then you have a disruption of that trust, unfortunately, where students feel like, oh, you’re just the same as everyone else.

So I think one of the challenges is for students to understand that administrators actually don’t get to make those choices. The way it works—I’m going to do, like, a very quick 101 on forum analysis—but if you’re a public university, if you open up a space—so, for instance, I’m thinking—I went to Berkeley—Zellerbach Hall, right? That’s the biggest hall on campus. There’s concerts there. There’s lectures there. If you allow person A, person B, person C to come and rent the space in Zellerbach, then when person D says, I want to come, even if as administrators, even if institutionally you think that the message of this person in heinous, you cannot by law say to them, you can’t come. And that’s because as a public university you cannot make decisions based on the content or viewpoint of the speakers that are coming.

So you can make rules. For instance, you have to have a ticket to come to Zellerbach. Or you could say, you know what? Certain events are only going to be allowed for students and you have to show a student ID. Basically, what administrators can do are what are called time, place, and manner restrictions. And at their most fundamental, it’s literally something like amplified sound is allowed from twelve to one in the quad. So what’s the time? Twelve to one. What’s the place? It’s the quad. And what’s the manner or speech? It’s amplified sound. It doesn’t matter whether I’m talking about abortion, or immigration, or the death penalty, or cost of living. The rule is I can only use amplified sound from twelve to one.

And public universities always have to use that framework. And so what’s why I emphasize so much the role of the administrator explaining to the student both we have to allow this speaker. But then I think there’s a role for working with those students. OK, how do we want to—how do you want to send a counter message, right? And I think there’s lots of things people can do. So of course, one is you can counterprotest. I’m not sure that’s always the best answer, because I think a lot of those provocative speakers that come to campus, really what they want is media attention. And so I would say, what about doing a different event at a different time—I’m sorry—at a different place but at the same time. So go and have some amazing, like, diversity event, and draw attention away from the speaker.

So I hope—I hope that answers your question. I think that the difficulty is that administrators can’t really make those choices. And that is really challenging. The law is sort of an all or nothing—you either open your forum or you close it. And once you open it, you can’t pick and choose.

CASA: Thank you.

Our next question comes from Bernard Haykel. He’s a professor at Princeton University. Bernard.

Q: Hello. Yes. I hope you can hear me. Thank you very much for this talk.

I have two points. First, relating to the Kalven Report. The University of Chicago Kalven Report stated that universities, as institutions, as universities, ought to remain neutral unless the issue affects the functioning of the university directly. And you said that you were in favor of universities taking positions on certain controversial issues. I tend to disagree with you. I think that a university president, as an individual, can do so, but not in the name of the institution. So for instance, let’s take an example. Let’s say Princeton were to take an official position that Zionism is racism. That would make a lot of students feel very uncomfortable. I think students should be made to feel uncomfortable, but by other professors and other students, not by the university as an institution. Because the institution has power over students and can dole out favors and so on. So that’s one point. And I’d like you to comment on that.

The second point, and I’ll be very brief, in the list of people that you mentioned as being targeted or potentially targeted, you didn’t mention conservative students and religious students, who tend to be extremely—are extremely uncomfortable with different ideologies—gender ideologies, for instance, anti-religious ideologies—that seem to be pushed by administrators, or at least some of the administrators, at university campuses across the country. I’d like you, perhaps, also to address that constituency, and how they can be made to feel that they can speak up and not always be silent about how they feel. Thank you.

CASA: OK. Thank you. First of all, thank you for making that point. You know, I feel like I should have been more clear. I think one of the challenges, while we’re—the Kalven Report delineates it, right? The institution has a whole versus an individual. I totally agree. In this case, I’m talking really more about the president or chancellor or a university. And I think what some would argue is that that’s basically akin to an institutional position. So I hear what you’re saying and I totally agree. I don’t think that, like, yes, universities should take positions on political or social issues, like per your example about Zionism is racism.

But I do think there are many people who think, for instance, that the president or high-level person taking perspective—you know, making a statement—name many of the things that have happened, whether it’s about George Floyd’s murder, whether it’s about things that have happened in the Supreme Court—that that is akin to the institution. And I think you make a great point that, what impacts the functioning of an institution I think is—again, it’s, like, the devil is in the details, right? If you’re a university that has a medical center, that might be a different reason to make a comment about Dobbs, if you’re going to be giving medical care, than maybe a university that isn’t. So I agree.

And absolutely, I did not make—that list was not an exhaustive list, unfortunately, of groups that are targeted or marginalized. So absolutely. As someone who worked at a Jewish community organization for fourteen years, I’m very familiar with the targeting of religious groups. And, I understand that there is a lot of concern right now about conservative students in particular feeling like they are uncomfortable to share their views. And again, I think it’s something that we need to be concerned about and to be thinking about. But I also think we need—a lot of the top-level polling that a lot of really wonderful organizations have done about whether or not students feel comfortable sharing an opinion in class, I worry a little bit about that question and whether we’re really getting at why.

So, for instance, if you have a bunch of students who aren’t speaking in class because they’re afraid of retaliation from the teacher or retaliation from peers, like, that is deeply concerning to me. And we need to address it. But if you have students who are not sharing their opinion in class because, like, I sometimes felt in class, they feel embarrassed, they don’t feel ready to share their opinion, they have nothing to add, they are worried that they might offend someone—I don’t think those are always bad reasons, right? I mean, I feel like I don’t say everything that I think, and that’s probably a good thing, right, for all of us.

So I do think that, like, it needs to be addressed. But I also want us to be careful about making sure that we’re sort of sorting into piles of when students answer, yeah, I might not share my opinion what those answers are. And we actually have a fellow—our senior fellow this year is working on this concept of self-censorship. And I’m going to write down your name. I’d be happy to send you her report on that and to dialogue further.

CASA: Thank you.

Our next question comes from Janine Zacharia. She’s a lecturer at Stanford University. Janine.

Q: Hi, Michelle.

I teach at Stanford. And last year there was an incident with a former student of mine named Emily Wilder, who you may have heard about the case. She was attacked in a Twitter thread by a campus group. It led to her firing by the AP. There were calls within the faculty at Stanford to do something. And because of Stanford being a private university, albeit in California, as you reference, we’re sort of, I guess, acting like a UC. But I’m just curious your thoughts on—because I know this is something the administration is wrestling with—what can and should universities do when a student doxes or defames a fellow student or a professor on an online platform? How can universities discourage this behavior? And what penalties, if any, can be imposed? You mentioned some—you reference the possibility of penalties earlier. Thanks.

DEUTCHMAN: Can you remind me if Emily was a student at the time that this happened?

Q: She was officially, technically, had one more quarter, but she was—she was kind of quasi-alum. She hadn’t officially graduated yet. She was already employed by AP. So it was kind of, like, in this middle ground between the two.

DEUTCHMAN: So I think this is a great question. And I think it’s one of the trickier ones which talks about, you know, we’re in this world now where, you know, the Tinker case, which was the 1960s case about the black armbands, K-12. They—the Tinkers—(coughs)—excuse me—wore black armbands to campus. They were told to take off the black armbands. They said no. They sued. It went up to the Supreme Court. And that is—it’s sort of interesting that that’s still kind of what we’re relying on in K-12 largely, but even sometimes in higher ed, which is that, unless it’s causing a disruption at school, you’re allowed to have political and other free speech, and that student rights don’t stop at the schoolhouse gate.

Well, of course, now the schoolhouse gate is sort of—it doesn’t really exist anymore because there’s this free flow of ideas from lots of places. And one of the hardest questions is how do we handle things on social media and where does the jurisdiction of the school sort of begin and end? So I think it also depends, Janine, on what you’re thinking about doing. So as you know, I’m a big fan of speech and using platforms. You know, not everybody has an equal platform. There’s all kinds of power dynamics. And I want to acknowledge that. But I think when these kinds of things happen that are sort of off-campus or on a social media platform, nothing stops a university from speaking out and educating students, faculty, and others about what the concerns are, right?

I think the harder question becomes about sanctions and about punishment. And I think that probably legally it’s made very tricky to punish somebody who may be a Stanford student, but who is engaging in certain kinds of behavior offline, unless you can sort of draw connections to what’s happening on campus. I think unfortunately, like all of these cases, they’re extremely—they’re extremely fact-specific. One of the things I worry about is that we’re a very sort of sanction-oriented society. And so when people think, well, we can’t punish that student, so there’s nothing we can do, that’s where I think there’s a lot more room in there.

And I also think there is a case—and I don’t know if you’re familiar with it—it’s a case out of—a case out of Mary Washington, a school where there were some threats against women on campus from folks off campus, threats about rape and other violent things. And the school sort of responded, we can’t do anything. And they were sued. And ultimately, the court in one of the first cases sort of explained that actually the school might have a responsibility. But again, I’ll put the decision in the resources. It was, again, very, very fact specific. And, you know, the court was making the analogy to a bomb threat. If a bomb threat from outside of the school, does that mean you don’t do anything about it?

So I do think this is a legal area that is sort of a little bit gray in terms of what the university’s response is going to be. And I think it’s going to depend on impact on campus, and also whether the response is one of sanction or not. But I’d like to think that anybody—I mean, Emily Wilder’s story was everywhere, right? I’d like to think that that’s an opportunity in any class, almost, to be discussing all kinds of things, and linking it to the curriculum, but then also having a moment of sort of what we’re going to talk about, which is, like, digital health and digital safety. I hope that’s helpful.

CASA: Thank you.

Our next question is written. It comes from Ambassador June Carter Perry. She’s a visiting professor at Mount Holyoke College and asks: Given the political and social climate, how can universities—especially those in red states—guarantee free speech, yet avoid the development of potentially dangerous anti-government or anti-ethnic group activity?

DEUTCHMAN: That’s the million-dollar question. I think it’s—I think it’s really, really challenging. And I think it has to do with trying to make sure not just that the campus stakeholders understand what’s at stake, but also reaching out to the public, right, to voters who are actually electing these legislative officials who are engaging in some of this very terrifying legislation. And I think part of it really has to do with what is faith like in higher education right now in America? And there’s all kinds of studies. Pew came out with one. There’s less and less trust in higher education, fewer and fewer people think that a bachelor’s degree is necessary.

I think that we need to attack those kinds of arguments not just within the community but outside of it, which is to help others understand why these attacks on higher ed are really attacks on each of us. And try to connect, I think, not just to the higher ed issue, but as sort of a democratic norms issue also, that this is beyond just speech between people on campus. This is beyond just infighting about academic freedom. This is even beyond sort of higher education. These questions are about, what are the democratic norms that we hold dear in our society, and how are they being undermined all around us? And what is the responsibility of individuals in the community to assist with that.

CASA: Our next question comes from Professor Meena Bose at Hofstra University. Meena.

Q: Thank you. This has been a very instructive discussion.

And I’m wrestling with the comments you made at the start, Michelle, about rights and responsibilities. And I wonder if you could say a little bit more about the challenge of tone with speakers and in the classroom. In universities, we emphasize empirical analysis, reasoned discussion. And so that, I think, implicitly assumes a certain kind of deliberative dialogue, kind of maybe less passion, more reason. However, when you look at topics that are very much in the news these days—just very quickly, abortion, immigration, race relations, affirmative action. These topics—and I didn’t even get to the foreign policy. These topics can be highly contentious.

And both—I have found that both students, actually faculty as well, and speakers can get very emotional in ways, or get very passionate—maybe passionate is a better word. And I’ve had conversations with many people over the years where we say, well, do you want to—you don’t want to hinder, you don’t want to kind of block passion. But you—but sometimes that takes us away from reasoned discussion. And I guess—that’s a very broad question, but just how do we navigate that in the classroom and when we decide which speakers to bring?

DEUTCHMAN: I wish I had all the answers for you. I mean, this is what I struggle and think about day in and day out. And in some ways I wish we could all unmute and have a discussion, because I imagine that all of the other faculty members and others probably have lots of ideas for you. To start at the top about rights versus responsibilities, I think I was thinking not about that necessarily in the classroom, but just more theoretically about this idea that when we talk about what our free speech rights are, that I do think it’s in some ways the responsibility of educators to also talk about what it means to use these rights, free speech or otherwise, right, responsibly.

And you’re absolutely right, that doesn’t mean—I don’t believe in this idea of, like, discourse has to be civil, meaning it has to be quiet and polite. We have to expect that people will become passionate, they may become upset, they’re going to respond. So the idea of rights and responsibilities is just that we—really just the framing of what does that mean. But I think when you get into the weeds—I mean, again, I said this as an answer to an earlier question. I think a lot of it is about setting the tone in the class at the get-go. And, our center has really interesting research done by some fellows about things that you can do to make sure that you’re kind of creating the kind of environment that’s going to allow for deliberative dialogue.

I mean, I think, ground rules about how we’re going to talk to each other. But ultimately, if you’re on topic, and people are sharing their perspectives, it’s not something that I think you’re going to stop. I think it’s just about creating an atmosphere. And like you said, I think one of the ways to deal with these situations is to go back to the data. So I was actually doing a training yesterday and we had done a case study about an affirmative action debate that was taking place in a—in a politics of higher education class. And, somebody was saying some pro things, some people were saying some pro things, some people were saying some con things, somebody felt offended.

And one of the suggestions in the group was one of the things the TA could do, in addition to kind of going back to how—what the ground rules were, which is to stick with the data. Which is to say to people: OK. I hear that you’re feeling really impassioned about this. But, let’s go back to, like you said, empirical analysis. Let’s go back to whatever it is—whether it’s studies or court cases. And so always trying to link, especially in the classroom, those things. I think that they have to be able to coexist, but I think finding the balance unfortunately is so class-specific. We all have been in those classes where there’s one student who, unfortunately, is creating—is making it very challenging for others. And sometimes we don’t.

And I think also we have to think about not just professors but, I think, TAs, who they had—this is back to my idea of inculcating skills—I think learning how to both dialogue with people who disagree with you and to facilitate that kind of dialogue is something that takes practice and routine. It’s like a skillset. It’s a toolbox. And one of my question is, how are we building that toolbox both for students, but also for people who are facilitating dialogue? I get it. You’re a political science person. You’re probably—you know that part of your job going to be to deal with these hot-button issues. But what happens when you’re in a different kind of field? Maybe it’s a hard science or something else. These things are still coming up. And what tools are we giving facilitators and teachers about how to create kind of the tone.

And with the speaker, I think also—I just want to mention—I think it also all goes back to kind of setting those ground rules of what you can expect in the classroom. I don’t know if people remember sort of the issue of Bright Sheng, who was the composer, I think it was at Columbia, who showed the—it was an opera class, and he showed a portion of the Laurence Olivier film Othello, where he was in blackface. Now, everybody was debating free speech, academic freedom. To me, this was a question of pedagogy. I mean, it was within that—it’s his disciplinary expertise. That was his—that was his area. I think the question was, would it have been different if he’d been able to set it up with a little bit of context? I don’t think that he shouldn’t have done it. I just think that it needed some context so people knew what to expect.

CASA: Thank you.

Let’s go next to Professor Fernando Reimers. He’s a professor of international education at Harvard University. Fernando, if you could please unmute.

Q: Yeah. Can you hear me now?

CASA: Yes.

Q: Thank you. Thank you, Michelle, for spending time with us.

I wonder if you are aware of any empirical studies that examine to what extent free speech in universities, and maybe even academic freedom, are compromised by the reliance of universities on particular sources of funding, whether it’s large donors or governments, foreign or domestic. So for example, if a university enrolls 30 percent of its students from country X, where certain human rights and freedoms are challenged, does that cause the university to self-censor in any way in order not to offend their patrons? Or if significant donors to the university, or even members of the governing board of the university, have direct financial interest in carbon fossil fuels, how does that influence the freedom of members of the university community to address climate change-related topics in their teaching or research? So my question is, has anyone investigated this? And if your view, what would be some safeguards that institutions could put in place to protect free speech and academic freedom from the potential impact of funders on those freedoms?

DEUTCHMAN: Another great question. Off the top of my head, I am not familiar with any studies about this in particular. I mean, I think just from reading the news and anecdotally I think we kind of know that the answer is “yes,” but I really can’t opine about how significant that impact is. What I can say is that as some of it comes to light, as especially things that are happening in board of trustees meetings and things like that, people are kind of rethinking how they might put in those safeguards. But I really don’t have specific data on that. I’m certain that it’s happening, not just—I think it’s alumni. I think it’s donors. I think it’s, again, pressure from legislatures. I think it’s foreign entities. But I really don’t know how significant the impact is. But I think it’s a great research question. Maybe someone wants to apply to a fellow at the center and research it.

CASA: I think we can squeeze in one last question, from Allen Weiner at Stanford. Allen.

Q: Thank you. I’m Allen Weiner from Stanford Law School. Appreciate very much your remarks.

So, listen, there’s a rumor going around out there that I keep hearing about, there is a left-wing bias in American higher education institutions. And I can’t help but to think about that when, Michelle, I think about your suggestion that universities need to make judgments about when to message themselves in response to maybe harmful speech on campus or advocate for particular communities.

And I’m just thinking about a couple of examples that happened here at Stanford University. In one case, a student put up a flyer that mocked California’s decision that we would be—or, the local county’s decision that we would be a sanctuary community for undocumented aliens. And the student was asked to take that poster down. In another case, we had students here at our law school who mocked members of the Federalist Society. Since you’re at a law school you don’t need to—I don’t need to explain what that is to you. And we all thought, like, oh my God, this is outrageous. This was a perfectly protected manifestation of free speech. How could you in any way want to make it—penalize a student for having engaged in this mocking?

So how do we—should we try to check our responses based on our political biases? Is that impossible? And if not, how do we manage the fact that we all have our own political judgments and, again, we probably do lean left at universities?

DEUTCHMAN: Yeah. I mean, I think it—I think that that rumor is probably true, that if you’re going to poll people there’s more left-leaning faculty. I don’t know that I think the greatest issue right now is indoctrination. There’s also that rumor about, you know, this is all caused by left professors indoctrinating. I think it has much more to do with things happening outside of the classroom. But I do want to just—I think both of your examples are both interesting and troubling. And I just want to make sure I can articulate—or, try to articulate the distinction. I would not ever advocate for taking—not ever—but I feel like, taking down a flyer based on its content.

So for instance, at Stanford I imagine there are rules about what’s allowed to go up where. So if the flyer that’s mocking the sanctuary decision of the locality is in an appropriate place, I do not think that it should be taken down. Now, does that mean that—it depends on where it’s put up—but somebody might want to put up a flyer that, you know, speaks back to it, that someone might want to create an event about sanctuary cities, either pro or con. I think that’s all within the realm of counter speech. But I want to clear that when I’m talking about universities potentially responding to things that happen on campus, I’m not talking about it because they’re stopping/prohibiting taking down the speech. It’s because they are not going to do that that necessitates the message, which is to say, right?

And so, for me, I think when we start talking about penalizing people for speech, I think that’s definitely where I become deeply concerned. I’m talking—I’m imagining that this messaging is happening around a situation. And again, you can’t possibly respond or message about every single issue. And, again, I don’t have the solution to how one decides when, and how, and where. And I can see how some administrations might come to the conclusion that they’re basically not going to do it, except in very few situations, because the picking and choosing is too difficult, and then you’re just going to get slammed for being inconsistent.

But I hope that, Allen, I am being clear about, I don’t—I don’t think speech should be stopped. And I think bias is your right. We all have our own biases. And I think talking about how one evaluates their own bias and then how that plays out either in your classroom or in your interpersonal interactions is a topic for another webinar.

CASA: Thank you, Michelle. Thanks for speaking with us today, and to all of you for your questions and comments. You can follow the University of California Free Speech Center on Twitter at @ucfreespeechctr. We will be forwarding to you resources relevant to this talk in a follow-up email. And you’ll also soon be receiving an invitation to our next Higher Education Webinar. In the meantime, I encourage you to follow @CFR_Academic on Twitter, and visit CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org for research and analysis on global issues.

I hope you all have a great start to the fall semester. Thank you, again, for joining us today. And we look forward to your continued participation in the CFR Higher Education Webinar Series.


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