Podcast | The Battle Over Free Speech and on Campus

Podcast | The Battle Over Free Speech and on Campus

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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[Music] Hello friends I'm Jeffrey Rosen President and CEO of the national Constitution Center and welcome to We The People a weekly show of Constitutional debate the national Constitution Center is a nonpartisan Nonprofit chartered by Congress to Increase awareness and understanding of The Constitution among the American People over the past few weeks protests On college campuses about the war in Gaza have sparked a debate about the Scope and limits of free speech rights On campus in this episode of we the People I'm honored to be joined by two Of America's leading Free Speech Scholars Keith Whittington of Princeton University and Jeffrey Stone of the University of Chicago to discuss the Campus protests and the First Amendment Keith Whittington is William Nelson Cromwell professor of politics in the Department of politics at Princeton University he's currently the chair of The academic Committee of the academic Freedom Alliance and a Hoover Institution visiting fellow Keith's new Book you can't teach that the battle Over University classrooms will be Available on May 20th Keith it is great To welcome you back to We the People Thanks for having me and Jeffree stone Is the Edward H Levy distinguished

Service professor at the University of Chicago He previously served as dean of The law school and Provost of the University he's the author and editor of Many books about the First Amendment on The Constitution including National Security leaks and freedom of the press The Free Speech century and perilous Times free speech in Wartime he chaired The committee on freepr fres at the University of Chicago Jeff it's Wonderful to welcome you back to We the People thank you delighted to be here Let's begin with the University of Chicago a a a beacon of free expression Recently the president of the University Uh announced his policy about uh sending The Chicago Police to remove the Encampments uh Jeff Stone tell us about Why the University president did what he Did and whether or not you think he was Right so as you noted the University of Chicago is unique in its commitment to Freedom of speech and academic freedom From its very founding this was a Central element of the values of the University and it has lived up to that Uh over the years uh in many ways uh and Prides itself on its commitment to uh Not taking positions itself on public Issues and allowing faculty students and Others to express their views without The university inter interfering based On the viewpoints that they're

Expressing in this most recent situation Um a number of students as in other Universities uh gathered together uh to Engage in a protest against Israel um And put up a number of TS in the main Quadrangles um and in doing so um Clearly were acting inconsistently with The University's neutral rule about uh Gathering in and blocking access to Various facilities and uh the central uh Quads um it would have been perfectly Plausible for the president of the University to tell them from day one uh What you're doing is a violation of our Norms and of our regulations um and you Have to stop but he quite rightly Decided that they were engaged in Expressive activity this was obviously a Very important uh issue um they cared Deeply about it and although it was Problematic in terms of the functioning Of the central quadrangles um it was Not horrible and therefore he said I Will give you some time to do this um But you have to understand that it's Going to be limited and after a little Over a week he decided that that was uh Enough time and he said to them time to Now for you to disperse uh some some of Them did some of them did not he then Used the University Police not the Chicago police but the University Police Um to remove the tents and to remove Them um and it's remained uh clean ever

Since then so so far it seems to have Gone quite well Keith in addressing the Encampments the president of the University of Chicago said that the University would only intervene if what Might have been an exercise of free Expression blocks the learning or Expression of others or substantially Disrupts the function or safety of the University he also drew a distinction Between protests that disrupted Activities and those that did not and Noted that an encampment with all the Eological connections of the word to Military Origins is a way of using force Of a Kind rather than reason to persuade Others you've uh drawn a crucial Distinction between uh persuasion and Force do you think the president drew The right distinction and how would you Address the question of encampments well I do think the broad principle that he Articulated is the right one that we Ought to be thinking about what's Disruptive to the operations of the University uh generally certainly Especially disruptive to the core Educational uh functions um of the University but of course there's lots of Other things that go on on University Campuses as well um and protests and Encampments can interfere with those Kinds of activities also and the University has to take that into account

And so you can imagine protests that um Are obstructing uh the operations of Administrative um activities on campus Obstruct simply the normal activities of Other students on campus one thing about These encampments of course is they've Taken up space in in the common areas That students use for all kinds of Purposes um and uh a some small set of Students can't uh unilaterally Monopolize um that space and exclude um Others and so I think the right Principle for universities in general is To be thinking about how much of a Disruption does this create for um how The other people are trying to use the Campus are able to use it um of course There's also going to be judgment calls Um about um whether any particular uh Protest or expressive activity um is Creating a disruption and one of the Challenges I think for universities is Do you operate simply with that kind of Broad standard and leave it up for Example to the presidential judgment as To whether a particular protest is Creating those kinds um of obstructions Or do you have a set of detailed rules Um that we sort of thought through ahead Of time and sort of said well we think These kinds of activities would in fact Be disruptive um and so we're just going To exclude those um entirely from our Campus um so you can't uh be in

Classroom buildings for example or you Can't use um uh megaphones um or you Can't have uh protest activities after a Certain time of day um and the like Because we just uh think as a general Policy um that those are going to be uh Disruptive and it sends much clearer Signals to both students and Administrators about what to do under Those um situations the encampments um As a particular verion of protest um I Think are an interesting new thing that We're increasingly seeing um and and Over the last 20 years we've been seeing More and more protest activities um Include some kind of encampment feature To them um and I don't know if I'd go so Far as the president of un Chicago did And characterizing them as necessarily Militaristic or um having militaristic Overtones um in part they do serve a Kind of symbolic function or at least in Some circumstances they serve uh Symbolic functions I think in the Context of these protests um part of the Symbolism of uh the encampments is to uh Suggest the nature of the refugee status Of people in a war zone um and so uh This kind of Sheltering uh in in place Um uh sort of cuse um the situation that Uh people in a war zone might find Themselves in and likewise we've seen uh Tents and other kinds of shelters used In um uh protest about homelessness and

And other kind of situations where we Might think that the encampment aspect Is is part of the symbolic message they Want to convey but it's also true that And I think that's also what we're Seeing on University campuses right now Is encampments serve not just a symbolic Function um but they also are designed To uh be at least somewhat disruptive um To how the university operates they may Be relatively small disruptions um so For example students might confine Themselves to a lawn uh not extend off To sidewalks and other kinds of things Um but we've seen lots of uh movement on A lot of campuses in which students who Are doing the protesting have also tried To prevent other students from entering Into uh those areas where the Encampments are taking place uh we've Seen students try to harden their Encampments to make them harder to Remove um and I do worry that this um uh Increasing tendency of protest who want To include this kind of encampment Element um has also uh baked into the Protest um an unwillingness to move um a A greater willingness to assert a kind Of property right um over the space and Which the protesters are occupying um That uh makes it much more difficult uh For others to use that kind of of common Space and I think fundamentally becomes Much less tolerable um to University

When these things are not just symbolic But instead they're being pitched as uh This is a Liberation Zone um that only Us protesters are allowed to uh come Into um I think as a are thinking about That it's one thing if you have a Symbolic shelter it's another thing if You're just marking off a part of campus And saying no one's allowed to come here Thank you for that distinction uh Jeff The president of the University of Chicago said we will only intervene when What might have been an exercise of free Expression blocks the learning or Expression of others or that Meaningfully disrupts the function or Safety of the university and he Distinguished between a protest on the Quad with a large flag saying honor the Martyrs uh which was permissible and the Occupation of Rosenwald Hall which was Not uh Keith said that there's been a Rise in the past 20 years of encampment Features to protest that block movements Um do you see that change uh in the Recent protests too and how does the University of Chicago distinguish Between disruptive uh protests and uh Non-disruptive ones I I think the thing To understand about um protests and Particularly civil disobedience is that An important realistic way to get Attention is to be engaging in Provocative

Activity students faculty and so on are Perfectly free to hand out leaflets to Give speeches to hold events to talk About issues in all sorts of ways that Are conventional for the University Environment and that's something that is Completely protected um even if other People are concerned or upset about the Points of view that are being expressed But the reality is doing those things Will not get you stories of the New York Times or the Washington Post and as a Consequence people who want to make Their views well known um will Inevitably engage in activities that Will get them attention and that means Engaging in activities that will be Perceived as disruptive um and that will Lead whether it's universities or other Organizations uh to attempt to uh Regulate or silence what they're doing It's not because of the message they're Communicating it's because of the way in Which they're doing it and it's as I Said it's completely understandable that Uh one wants to do that that that is the Way that's why we're having this Conversation frankly um and had the Students at universities and colleges Across the country been using Conventional appropriate means of Communication it would be interesting on The substa of issues but we wouldn't be Talking about about this um so students

Are are clearly understanding that the Way to get the attention they want and I Understand why they do want it um is by Violating the Norms of the institutions So as to force the institutions to react In a way that will become a matter for Publicity um and so if you didn't act on Day one they will be more aggressive and You'll have to act on day two um because That's the whole point so I do think That what what the University of Chicago President did was the correct thing he Basically as I said he um allowed them To violate the ordinary content neutral Rules about When students can take over public parts Of the institution because it was Expressive but also recognize that there Is a point which you don't want to let Them do that forever because if they do That then other organizations with other Issues will do it as well um and so you Have to at some point step in and stop It and also the students understood That the way they would get attention as They said by being more and more Disruptive so this is a it's a Complicated game that we're playing in This context but it's important to Understand that the protesters know Exactly what they're doing and they want To get the attention that they get by Being silenced that's the whole Point Keith in your important books

Speak freely while universities must Defend Free Speech you have a chapter on Forms of protest and you distinguish Between staged and actual disruptions Which you say should be treated Differently you talk about the problem Of the heckers veto and you say that Universities may choose to negotiate With protesters who are engaging in Civil Disobedience but only if they Think that the cause is sufficiently Important uh and it's a credential Question how can universities reconcile Their commitment to neutrality which you Endorse with a making judgments about Whether a particular form of civil Disobedience is appropriate enough to be Indulged and tell us more about this Distinction between actual and Stage Disruptions I think it's not an easy Question and uh part of the challenge is Being able to communicate with students And understand what they're actually Doing um 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 going to occur they try to engage in Dialogues with students to understand uh What the students are trying to Accomplish um how far they're will Willing to go uh what are their plans Exactly um try to communicate clearly to

The students as well what the rules are Um so students go into this process Understanding uh what's going to be Allowed what's not going to be allowed What are the consequences uh for Violating them so keeping open those Lines of communication and having uh Conversations before the protest begins I think is often important and helpful And trying to anticipate then um is this Going to get out of hand how far is this Going to go how serious is the Administration really about enforcing um Uh their rules for example and can Prevent some of these things from being Um a temporary uh momentary disruption That calls attention to the cause for Example um but really doesn't create Serious difficulties for the University And allows everybody to move forward uh In a relatively uh reasonable um way but That's not what students always want and I think part of what we're seeing now With the encampments uh with this round Of protest um is there is a somewhat Greater radicalism here in on a lot of Campuses where students uh don't simply Want um a a momentary uh protest that's Going to get attention um but they Really do want to heighten the conflict Um in order to create more and more Attention in order to extend uh the Controversy to Greater lengths um we've Seen this on a lot of campuses and how

This has played out we've seen a version Of it here at Princeton um as well where Students began wanting to create an Encampment uh like elsewhere our University told them tents and shelters Were not allowed those were specifically Against the rules um but it did allow Them to bend the rules uh relative to uh Occupying some space um on campus uh for An extended period of time uh students Ultimately were not happy that that was Not getting enough attention so they Occupied a building uh for a period of Time um now they're engaged in a kind of Hunger strike uh in order to to uh Attract additional attention to the Cause um and so one kind of challenge Relative to the University of Chicago For example if you give them a week um Uh will the students decide well that's Not enough attention we're not giving us Enough and now we have to do even more Uh in order to get more attention and Become more and more disruptive um and Force a stronger and stronger reaction Potentially from the administration uh Which becomes um uh uh challenging and Difficult I think one of the I do think It's fundamentally credential judgment Is what's going to work we've seen lots Of different kinds of approaches Different University presidents have Taken to try to deal with the protest Some more effective than others and in

Some places I think the exact same kind Of efforts have worked much better in Some places than other 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 kind of warnings those kinds of Efforts and then the students didn't Clear out uh and then the question is Okay now what do you do um at that point Um and part of that calculation is how Is those students going to act and what Are they going to force you to do um Under these circumstances but frankly I Think part of the challenge for University presidents in this Environment also is thinking about what Are the faculty going to do um how are They going to Rea all of the students uh What are crucial stakeholders um like The mayor of the city of Chicago uh and The police department going to do um Relative to this how are politicians Outside um 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 um 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 uh I don't think there's a one Size fits all um as to how you try to Manage these situations and I think it's Uh easy to uh play Monday Morning Quarterback on some of these things and Say well they should have done it Differently um 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 um uh Just in terms of the functioning of the University and being able to move on one Last thing I would just note briefly That that uh both comes out the University of Chicago example and the Question you just asked which is about How do you maintain the neutral time Place and Mana 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 set a you get a onewe Encampment rule um at the University of Chicago and so does the next protest That comes along where they want to Occupy the quad um and then the University President says well you're

Violating the rules uh you need to clear Out um and they say well last semester You gave uh the Gaza protesters a week Uh shouldn't we get at least a week uh Before we have to uh clear out um and I Think universities can get themselves in A real bind um about that you want to be Somewhat tolerant to students you want To give them some grace period in wiggle Room um in these situations and you need The credential maneuvering room to deal With different kinds of of circumstances Um but if you're not careful you're Going to find yourself in a situation in Which it looks like you're playing Favorites um and you look like well we We said we had some rules um but we're Actually not going to enforce those Rules against everybody um and uh Students I think quite rightfully uh Will find themselves starting to Complain um that uh the rules uh seem to Be very selectively enforced depending On um how much support the students have And how sympathetic uh their cause seems To Be thank you for that uh Jeff the Question of selective enforcement and Institutional neutrality that Keith Raises is so important uh institutional Neutrality is at the core of the Chicago Principles and it's what has allowed Chicago to flourish as a free speech Beacon and yet around the country

Universities are being accused of being Selective in their Devotion to free Speech at the celebrated hearing of the University presidents of pen Chicago and MIT the claim was that speech was being Protected for some causes and not others And Keith also raises this question of When you accommodate some groups with One week uh grace period do you have to Do that across the board H how um are Universities dealing with this question Of uh selectivity when it comes to Institutional neutrality and having Departed so far from institution Neutrality how can universities other Than Chicago recover it Well I think Keith is exactly right that This is a real challenge um the reality Is with respect to all Regulations um governments and Universities and colleges exercise a Degree of judgment and discretion as to When and how to enforce um no rules are Enforced automatically the same way in All circumstances um one has to weigh um The cost and benefits of enforcing Different regulations and rules in any Given situation and that's just Inevitable um so I think to that extent Uh all institutions are going to have to Decide on a case-by Case basis um how to Respond to particular situations that I Think happens with respect to all sorts Of things a student comes to you says

Can I have an extra week to turn my Paper in um you know that's not going to Be the same answer for every student um It depends on the circumstances and the Reasons uh the the key factor I think With respect to uh things like protests Is that universities should not and Cannot act based on the viewpoints being Expressed by the protesters um they can Treat different protests differently Based upon how disruptive they are um But they cannot treat them differently Based on the message that's being Communicated and that's something that I Think is essential for universities uh And uh they have to take that extremely Seriously um but reality is you know Just like the government exercises Judgment in deciding whom to prosecute When to prosecute and so on and as I Said just like you know faculty members Make judgments about you know whether to Give the student extra time to write it To turn into paper universities have to Exercise a degree of judgment in Deciding you know how to respond to Particular controversies and problems so I think that's inevitable and that's Going to happen always but the key Factor universities have to be Viewpoint Neutral about it Keith is Jeff's Endorsement of viewpoint neutrality for Universities consistent with your Suggest question and and speak freely

That uh you say the question to be asked About any given disruptive protest is Whether the disruption to social order Is Justified from the general Perspective of a liberal Democratic Society not whether the protest Falls Within the Ambit of free speech That's Essential to the mission of the University do you think universi should Make judgments uh cause by cause about Whether the disruption is is Justified Or is that a violation of viewpoint Neutrality yeah I don't think Universities can be making judgments About the do does the University President for example agree that uh the Cause of the Palestinians is so Important or so just that we need to Give special rules in this case but some Other protest that comes along uh the University president is going to be less Sympathetic with um disagrees with the Goals and as a consequence is going to Be much less tolerant um of what the Protest looks like um as Jeff suggested I think these are going to be very Context specific judgments about what Kind of uh Grace you offer uh relative To particular um rule violations um so You can imagine for example that there Are different places in the University Where you might want to try a set of an Encampment um and and if the students Were to say well last semester you

Allowed an encampment um sometimes the Answer is yeah but that encampment was Not in a a place in campus um that Disrupted classrooms uh for example or Was right outside a dorm and prevented People from sleeping uh uh in their Dorms at night um uh for example or the Timing um of the protest is different in Terms of how much of a problem it's Going to create uh for the operation uh Of the university and the like um and so Uh one of the challenges though that University president is going to have to Face is how do you explain uh the Differences uh between how you're Treating uh different protests where Hopefully the reference point is always Going to be one of saying um well look The conduct here and the kind of Disruption it was creating is different And that justifies create treating them Somewhat differently um but what we're Not going to do which we've seen some Rhetoric around right now we're not Going to create a Palestinian exception Either in the sense of we're not going To crack down on Pro Palestinian speech Um which is certainly what some of the Protesters are arguing that there's kind Of Palestinian exception where our Speech is is less protected than other People's speech um and likewise you're Not going to have a prop Palestinian Exception since we're going to be more

Tolerant um of your speech um than Somebody else's um speech um and that's A very hard standard to um maintain Right People's Natural sympathies um Will lead them to want to say well in This case the protesters really seem to Have a good cause and uh their hearts in The right place um and so can't we show Them some some additional tolerance here Um but those other protesters we really Don't like um and and one of the hard Challenges of Administrators trying to Enforce neutral rules um is to say we Can't make those kind of judgments um uh We have to um stick to um the core Principle we're really trying to protect Here which is universities are plac for Everybody to make use of with lots of Different perspectives and we're trying To create a a set of conduct rules um That will allow everybody to do that um In a reasonable way over time thank you For that and thank you for both helping Us understand the importance of uh Neutrality and the difficulty of of Making these judgments uh Case by case Jeff we we jumped right into this Crucial topic and I want to pull back For a sec how you you've seen uh Protests through the course of your Towering career defending free speech on Campus how how are these uh protests uh Different if they are different in any Ways from the Vietnam era you've both

Talked about the different roles of Faculty and and Mayors and outside Stakeholders uh there social media um Are are these um different in kind or Degree or are they like the Vietnam Protest and and what are the new Challenges of uh confronting protests in This particular Age um my sense is that the um Anti-vietnam protests were in many ways Uh similar to this people weren't using Tents and uh weren't taking over parts Of the community but they were Public Public space um but they were taking Over for example president's offices in Universities um they were engaging in All sorts of um what might be regarded As disruptive activi in order to get Publicity for their views um so I I Don't think it's unusual for protesters To think about civil rights protesters As well um back in the 60s um you know The point is again getting publicity Getting visibility in in these protests You're not simply trying to get the University to change its policies there Are lots of situations where that's the Issue but not these types of situations In these types of situations the issues Are far beyond anything about the University you're trying to get uh National attention if possible for your Positions and therefore again you want To create controversy as during the

Vietnam era and during the Civil Rights Era uh there were protests that were not Identical to these um but nonetheless Were Meant To Be disruptive and were Disruptive in various ways and Universities responded uh again in in Complicated ways I think in general they Tended to be uh reasonably patient but Not completely patient and shut things Down and punish students for engaging in Those protests um I remember when I was A college student at the University of Pennsylvania and participated in an Anti-war protest um it got a little bit Crazy um and the students began climbing On fences and broke some of them and so On and and so I think that's that's Inevitable in so far as you're trying to Get attention U but I don't think Universities are acting necessarily any Differently now than they have in the Past Keith do you see any differences in The conduct of universities when it Comes to Vietnam and today and I'll I'll Just raise the question of Faculty Participation uh Paul Burman wrote an Interesting piece in the New York Times Recently he was a leader of the 60s Protest at Colombia and he said then the Faculty were neutral or tried to deal With the question in the context of the Classroom and and now they're at the Barricades is that a difference and and What are the consequences so I think

Jeff's right to point to uh the Vietnam Civil rights Pro T is probably the thing That's most comparable to uh the current Protest in part because the audience That the students are really looking for Is a national audience and not simply About uh campus issues in some ways Campus is just the convenient Target but The but campus policies are not really Central to these protests um and so um Uh as a so I think it does sort of put Them at a different light requires Different kind of response the students Are going to be engaged in different Kinds of activities as a consequence of Trying to aim for that um and um they Are somewhat disruptive like um like Those uh protests earlier on they they Seem much smaller now than what we saw With a lot of the Vietnam protest in Particular which became um extremely Large um uh I think right now at least Uh these protest as occupy a much Smaller uh set of the students uh than Those uh protest did um but um it's also True I think that this protest does uh Attract more um support from a lot of Faculty administrators um than was true In the Vietnam era um I really am Hopeful that actually somebody's doing Good survey research um on faculty Attitudes about these protests there Were some really nice um survey work Done of Faculty attitudes about Vietnam

Era protests um they found some real Divisions Among The Faculty at the time Um there's a real generational split um Among The Faculty at the time with the Younger faculty being more supportive of Student protesters um in the Vietnam era Uh than the older faculty um but it was A pretty small set um of Faculty at the Time who were very supportive um of the Protesters I suspect It's a larger uh Percentage of the faculty um who are Sympathetic the protesters and this in This kind of protest activity um uh now Than uh was the case then um but it's an Empirical question and it'd be nice to Have uh more actual data on that Jeff What what's your sense of the role of Faculty in these protests uh CNN Recently reported at least 50 professors Arrested at campus protests across the Country some said they attended to show Support for their students um is that Different than in the Vietnam era and What are the rights of faculty in Expressing views on political issues Outside of their classroom duties I Think faculty members have every right To express their views about whatever Issues they wish um in in so far as Their acting outside their classroom Duties and that's an important thing for Universities to protect uh faculty Members uh are free to engage in their Own uh free speech and certainly they're

Free to take political positions um Outside their own narrow educational Functions um so I don't think there's Any particular problem with that uh And during Vietnam I don't remember Frankly um how often fa members took Positions about about the war um but the Fact that there's there are faculty Members now who are taking these Positions um I don't have any objection To that I think that's perfectly fine um They're they're free to say what they Want to think what they want and to Participate as long as they do it in in An appropriate manner I think if they if They violate University rules in doing So then they can be in theory Disciplined in the same way that Students can um but uh hopefully they Will be more cautious about that but They can be disciplined if they violate University rules just as they can if They violate other university rules so So I don't think there's any problem With faculty members though engaging in In public political protests to the Extent they think that those issues are To them personally Important Keith your uh important new Book discusses the question of the Rights of Faculty both public uh Universities and private universities And in chapter 5 you to sum up the Existing First Amendment precedent about

Uh faculty speech and conclude that um Faculty speech should reach its highest Constitutional protections when the Speech is gerain to the pedagogical or Content goals of a course and the speech Is professionally competent H how would You apply that framework which you set Out so well in the book to faculty Speech involving Gaza yeah so certainly I think one thing We need to distinguish is between speech That occurs in a classroom context in Speech that occurs outside classroom Context whereas faculty are speaking out Uh as the American Association University professors would characterize It uh speaking as Citizens um so if Professors are participating in protest Activities for example and uh giving a Speech on the quad um uh then we want to Give them of course a tremendous amount Of latitude um the same latitude we want To give students um as long as their Conduct is consistent with the rules of The University um the content of the Speech um I think uh it should have uh Extreme uh levels um protection even if The content of the speech uh might be Quite extreme might be quite Controversial uh might be speech that Others uh find uh quite uh repellent or Or disturbing or or offensive in various Ways um the classroom is different um in The classroom context um professors have

Um specific responsibilities that They're supposed to be um engaged in um And as a consequence they have specific Protections um but those protections Have real boundaries under traditional Academic freedom um protections and I Think properly understood s first Amendment um set of protection should be Viewed uh similarly uh for faculty um as Well um so uh if I'm a chemistry Professor teaching a chemistry class um Presumably there's no space in that Class uh to be talking about Gaza and What's happening uh in in the Middle East and so if you're occupying class Time using this captive audience uh to Pontificate on your political views About something you think is Terri Important but has nothing to do with Chemistry um then uh that's Inappropriate um and uh universities can Quite rightly um crack down on faculty And discipline faculty for engaging in That kind of behavior because students Have an proper expectation um that when They're in chemistry class they're going To be getting chemistry uh not uh Political discussions uh to suit the Professor's uh political uh interest Likewise even in a class in which it's Relevant to be talking about uh the Middle East or or Israel or Gaza or Foreign policy your various other kinds Of things related to um these current

Events um uh such that you satisfy that Kind your maintenance requirements not Chemistry class at some kind of middle Easter politics class or history class Um or political science class for Example there's still a requirement that You be professional and how you engage In it um both in the sense you're not Trying to indoctrinate and politicize um The students in particular ways um but Also um in the sense that you should be Conveying polit professionally competent Knowledge um uh to the students so you May have very strong feelings about a Particular um situation and yet you have A responsibility in a classroom I think To inform students as to what the range Of opinions are what the range of Scholarship looks like on this not to Mislead students about what the history Of the conflict might look like um uh For example um and so again uh the your Speech is more limited and more Constrained um in a classroom context Than it would be um if you're writing Off beds or participating in um campus Speeches There are though I think a range of Professional conduct rules that are not Very well elaborated in academic Norms That surround these things as well and There's some real judgment calls about How those ought to um play out so some One thing we've seen in some of these

Campus protests for examples is faculty Uh taking their classes to the Encampment um and teaching classes uh in The encampment which I think is uh Seriously professionally um uh unethical Um I think violates the proper Um professional responsibilities of Faculty uh to force their students to Engage in a kind of protest by sitting In a protest Zone uh in order to Participate um in their uh classes for Example so I think there's some uh Requirements that go along with not only Do what you say in the classroom but Also how you conduct your class um in These kinds of context and then like I Said even if you're speaking as a Citizen there's going to be conduct Rules that apply to faculty just like Everybody else just because you're a Faculty member doesn't get you a get out Of jail free card if you decideed occupy A building or lead a disruptive protest Or the like and there were some Situations in the Vietnam era uh where Faculty did exactly that and got Themselves fired um as as a consequence Of leading a disruptive protest being Among the occupiers um of a building for Example um and universities quite Appropriately um thought uh we don't Have to tolerate faculty um disrupting The activities um of the University Although we should tolerate faculty with

A wide range of political views who Express those wide range of political Views Jeff Keith has drawn a distinction Between faculty speech on the quad and Outside the classroom and inside the Classroom uh does that do you think that Distinction holds and are we seeing Examples of Faculty taking politics into The classroom making solidarity Statements in class as well as Professional associations associating Themselves with the protest the American Anthropological Association uh voted to Endorse a resolution to boycott Israeli Academic instit institutions and there Are is increasing pressure on faculty to Align themselves with one side or the Other um tell us about how this is Playing out and whether you think this Classroom uh outside the classroom Distinction can Hold well I agree completely that there Is a fundamental in the classroom Outside the classroom distinction um in The classroom the professor is Performing a function uh that is in General defined by uh the institution And that is you're teaching a chemistry Class or a history class or whatever and It's not appropriate to then move Completely to a different topic or Subject because you're politically Interested in or believe strongly in the Political views of that subject that

Would I I agree with Keith that would be Completely inappropriate um even in a Situation in which you're teaching a Course in which the issue may be Relevant so if you're teaching for Example as I do a First Amendment course Um I I think it is certainly appropriate To talk about and get the students to Think about what should be the Boundaries of protests like this in a Public institution um should the University be able to regulate things in A certain way um but I also think that It's inappropriate for the faculty Member to be stating explicitly this is The right answer to this question um Because of my political views about the Situation so I agree with Keith Keith Completely now there are obviously going To be gray areas there that are going to Be tricky but I do think that the basic Principles are clear that when a faculty Member is acting not in His official Capacity as a faculty member she is free To engage in public speech um in any way That she sees fit but in the classroom I Think there is a a clear responsibility To act in a professional way in light of The responsibility you have of teaching A particular subject in an appropriate Manner um in terms of Faculty members uh Themselves taking political positions Outside the classroom um I my own view Is that that's something that one should

Be a bit cautious about out uh because You don't want to be seen as being Overly political as a professor so your Students think of you in that way but on The other hand it's your freedom to do That and so I do think faculty should be A bit careful about not going over the Edge in terms of saying they have Particular strong views especially with They're relevant to their uh teaching Subjects U because that will distort What students think they expect of them In the classroom um but that's a matter Of discretion I think not a matter of of Rules Keith your new book you can't teach that The battle over University classrooms uh Includes uh an important chapter about The new so-called anti-woke laws and the Legal framework in which they should be Evaluated uh and in uh the final Chapters you talk about teaching in the Government school and compelling Students to believe tell us about the Current legal framework for evaluating Anti-woke laws and why you believe that They uh violate the First Amendment or And are ill Advised yeah it's a challenge to think About uh who ultimately controls the Content of what's taught in University Classrooms in private universities uh This was an extended fight in the early 20th century to uh try to push the

Trustees out of that process of deciding What's in the classrooms and what the Curriculum looks like and the trustees Often were acting through the arm of the University president um and so uh there Are real uh pitch battles about things Like um who gets to choose which books Get assigned uh to students in a Particular class can the University President a counterman an individual Faculty member and say you're not Allowed uh to assign that book to Students because it's uh the University President disagrees with it or trustees Disagree with it or alumni or even the Students disagree with it um and uh Mostly the The Faculty were successful Um in uh carving out principles of Academic freedom that said no no The Faculty get to control those kind of Decisions and the trustees should back Out of it and that was true in the Public universities as well they went Along with those same sets of Professional Norms what we're seeing now Though is a real challenge of legislator To and in some cases trustees in public Universities as well but especially Legislatur to begin to re-evaluate that And say look these are public Institutions um uh we can't simply Delegate all these questions to The Faculty um and certainly if we think the Faculty are making mistakes on some of

These things they're teaching the wrong Kinds of ideas or the wrong kinds of do Uh we need to intervene um as a state Legislature and make sure our state Institutions um are teaching the things To students that we think are most Appropriate to teach in um and that Ultimately then is a question of okay The what kind of legal Authority does a Legislature have in that regard and is There some kind of First Amendment back Stop um that would reinforce the kind of Professional Norms that we've been Seeing over the course of the 20th Century that provide real limits um on What uh they can do um the Supreme Court Um partially in the aftermath of the uh McCarthy era um and the battle over Loyalty Oaths um and the like in the 1950s and 1960s um said that there was An academic freedom component um to the First Amendment and academic freedom Values that were important um to the First Amendment but gave very little Guidance um as to what that meant in Practice um and it's really left it uh Since then to the lower courts to try to Work out what the doctrine actually Looks like and what kind of test ought To apply um in these uh situations um And and one of the challenges for Thinking through how does academic Freedom play from a First Amendment Perspective in public universities is

Subsequent to that the the court has Also said well you know we have Government employee speech that can be Regulated in various ways and the court Is increasingly sympathetic uh to the Idea that workplace managers ought to be Able to regulate to a very strong degree What happens in a workplace um in a Government workplace um in general um And if that's true of government Workplaces in general if you apply that Logic to a university classroom then Academic freedom largely disappears um In public universities and so one real Challenge I think that the courts are Going to have to confront now because of The work of these legislatures is how do We reconcile this kind of Doctrine That's that's emphasized the degree to Which government managers can control Their employees and what speech they Engage in in the workplace with this Claim uh that there's a real um academic Freedom component uh to to the first uh Amendment and the book in part is Concerned with trying to work out that Reconciliation in a way that maintains Um those academic freedom uh principles But in a way that is still coherent with Some of the goals of the government Employee speech Doctrine which means you Need to be able to manage the workplace And some of what we've already talked About about the particular professional

Responsibilities of professors in the Classroom I think as part of that and so If you have a legislature coming through And saying these ideas are politically Unacceptable you can't teach that Um that's different than saying um uh You can't teach incompetent chemistry uh You can't uh teach politics in your Chemistry class um and the like that That's appropriate um interventions in How you manage the functioning of the University uh whereas if you say we Don't like critical race Theory um as a Set of doctrines and as a consequence You're not allowed to teach that here um That looks much more like the Traditional political censorship um that The first amendment is centrally Concerned with trying to prevent um Legislators and other government Officials from engaging in Jeff do you Agree with Keith's argument in his new Book that legislature should not be in The business of telling universities uh What to teach or are you sympathetic to The argument that as universities Deviate from their principles of Institutional neutrality it's Appropriate for legislatur to impose Those Rules so first of all to be clear I Think government cannot constitutionally Uh dictate uh what private universities Or professors in private universities um

Can and cannot teach or write or say um 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 in so far As they are performing their Professional responsibilities uh 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 um to regulate the Expression of its uh public employees Both on the job and outside the job um Outside the job I think the answer is Very little I think that basically Government cannot regulate what Government employees can say uh when They're acting outside their official Capacities including obviously Professors and Scholars and so on um but When they're acting within their Professional responsibilities it's much Tricker here um and you know you can Obviously tell a chemistry professor That you cannot teach your class about Um history that's not appropriate the More complicated question is can you Dictate or prohibit certain viewpoints From being expressed by the professors Um in the particularly in the context of The educational process um and there

There's not yet I think a perfectly Clear answer in the law um the Supreme Court has been um cautious about Allowing the government to do that to Engage in particularly Viewpoint based Uh restrictions uh in in a number of Cases it is held Unconstitutional uh laws of public Universities that Specifically distinguish between Different points of view uh 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 um and Presumably it would beond institutional For public university to fund 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 um and Similarly I think in terms of the the Dictating what ideas can be taught um I Think it would be the court would be Highly skeptical of the Constitutionality of the government Making those decisions um just as for Example it is held that the a public School cannot remove books um from the Library because of uh disagreement with The viewpoints refest in those books um So I think these are complicated issues Because here we're talking about

Government employees and government Employees are in their professional Duties um like private employees subject To the regulations of their employer but The First Amendment does have a role to Play here and I my guess is that the Court should uh and hopefully will play An important role in limiting the extent To which government can dictate um what Positions uh professors and institutions Can use to educate their students um in In an important responsible manner Keith Uh any other thoughts about the Distinction between public and private Uh universities how the court might Respond and then talk about the central Distinction that's Court to your book About the difference between the Currency of persuasion and the currency Of coercion you root your defense of Broad First Amendment protections in the Idea of protecting uh persuasion rather Than uh coercing ideas and your final Chapter involves trying to course uh Student thought tell us about that Distinction and how you think it plays Out well as Jeff says I think these are Very challenging issues and the court Has uh not yet resolved these and and Have not really provided a lot of Guidance and and I think the Court's Going to be confronted uh soon with Having to uh get greater Clarity um on How some of these problems uh should be

Uh dealt with um and it's going to be a Hard challenge uh for how do you Reconcile some of these doctrinal um uh Commitments and how do you make sense of Trying to if the Court's inclined to do This tie the hands of legislators while Still um allowing uh reasonable uh Management of workplace speech by by a Faculty um but I think if you're going To have meaningful Uh first amend protection for academic Freedom um you have to think that Faculty as they're operating in their Research in the classroom um are simply Different than a lot of other government Employees and need a lot more freedom uh To engage in uh speech about ideas uh That their managers might not like um That is more expansive and extensive uh Than would be true uh for other Government employees one of the further Challenges is also tied up in some of These legislative efforts and how we Think about what happens in classrooms Is this problem of uh what constitutes Compelled speech and efforts to compel Student belief in ideas uh what Sometimes gets characterized as Indoctrination um of students um in the Classroom uh this has long been um an a Controversy among academic freedom uh Experts in discussions um all across the 20th century uh at the very foundation Of the American Association University

Professors uh there was an emphasis on The idea that faculty do not have the Right or freedom to try to indoctrinate Their students um but figuring out what That actually means in practice has been Extraordinarily difficult um um all Across this time and legislatur are um Now I think starting to uh really press On this question that we've tried to Duck for a century um of what counts as Indoctrination in the classroom so so Some of the legislation emerging out of Um State legislatures um are doing Things like saying you Advocate certain Ideas in the classroom um uh but uh and Or promote certain ideas in the Classroom but others um are framed more In terms of you can't compel students to Believe certain ideas um in the Classroom and that becomes a much Trickier um kind of thing to to Distinguish between okay on it's one It's one thing for professors to lecture About certain ideas or even say I think This is the right answer and let me Explain to you why um I think that's the Right answer and then there's another Question about okay when have you Crossed that line to say now we're going To compel the students to try to believe That um the legislator are not giving us Any guidance um on this front uh as as We're trying to work it through and so We're going to really be forced both the

University administrators and I think For courts to try to distinguish between Okay when have professors potentially Gone too far in trying to compel their Students to believe uh certain ideas um And it's not going to be easy I think to Tease those things um apart some of it's About very specific kind of Uh Behavior professors might engage in The classroom so for example if you um Uh instruct your students such that they Only get one perspective on a set of Ideas and they think that's the Mainstream View and it turns out this is A highly contested issue and Scholars Are all over the place on this and maybe This idea being expressed by The Faculty Is in fact not a mainstream View and Students walk out of the classroom with Misconception about the nature of the Problem that was discussed in the Classroom maybe that's problematic under Some of these um statutes it certainly May not be very good conduct on the part Of the professors but is it illegal um Under some of these statutes do you have A First Amendment right uh for example To engage in that kind of Conduct in the Classroom um one of the things is really Hard is thinking about um uh grading um Uh for example so a lot of focus on Indoctrination through these discussions Over time is really focused on what do Classroom discussions look like are you

Are students allowed to criticize the Professor and criticize the ideas Advocated by the professor but one of The real concerns that has risen both in Public conversation and among students And I think among legislators as well These days um is this question of well Yeah we can have whatever discussion we Want in the classroom and I can say Whatever I want in the classroom but When it comes time to give her an answer On a test or write an essay or a paper I Know which grade what answer is going to Get me a good grade and what answer is Going to get me a bad grade on the test Is that somehow compelling student Belief um in in those kinds of contexts And we've also seen some kind of Examples where professors seem to go Even further um so we've seen examples Of professors telling students for Example I will only write you a letter Of recommendation uh for graduate school For example or for outside jobs um if You um say that you agree to certain Precepts or or principles um so we've Seen some science professors for example Say well I know you got really good Grades in my class um so you're totally Capable of understanding the material And and uh saying it on the exam um but I'm not going to write you a letter Recommendation at a medical school Unless you tell me uh you believe in

Human ution um uh for example um if You're withholding Letter's Recommendation on that basis it's hard To see that you're not trying to compel Belief on the part of the students um in Ways that are going to be uh Troublesome Um uh from that perspective so there's a Lot of very difficult conceptual issues And and highly contextual issues in Trying to distinguish between uh what Counts as improper compulsion um in the Classroom of student speech um and I Think courts Because of the legislation that's now Emerging um are going to have a really Difficult time uh trying to um both Understand those distinctions and Explain those distinctions to faculty And Universities well it's time for closing Thoughts in this important discussion so Much of which has focused on the Urgent Importance of institutional neutrality And both of you have suggested that There is a question on campus today About the fundamental academic mission Um as David French put it recently does The University believe it should be Neutral toward campus activism or does It incorporate activism as part of the Educational process itself including by Coordinating with the protesters and Encouraging their activism Jeff Stone as One of America's leading champions of

Institutional neutrality why is it so Urgently important as an expression of The core function of the University as a Neutral form for the free expression of Ideas well I think that the universities Exist for the purpose of exploring and Learning new knowledge and if you go Back to a world in which as existed in The 19th century um colleges and Universities were seen simply as Teachers of accepted wisdom and Knowledge uh then a lot of questions Never got asked and a lot of insights Uh never were made and it is important For universities in order to fulfill Their function um to be able to explore Things that a prior generation would Have thought of as un unimaginable and As unrealistic and yet which we later Learn is correct that in fact the Earlier Generations were wrong so I Think it's essential for universities to Do that that's who we are that's why we Exist um it's to create knowledge and The way you create knowledge knowledge Is by allowing free and open discussion And research and disagreement and that That's to me the absolute core reason Why we have colleges and universities Now it's true they also exist to teach Uh and to teach accepted wisdom and That's a major part of what we do but It's also essential that we are there to Create knowledge and the only way you do

That is by challenging the accepted Wisdom and by exploring new questions And that's how we that's how we learn as A society and as a Nation Keith last word in this great Discussion is to you in speak freely why Universities must defend Free Speech you Eloquently defend the Urgent importance Of institution and neutrality as the Core mission of a university tell us why That is so and why neutrality is so Important yeah I would just endorse Everything that Jeff just said I think It's crucial to what the core mission of The University is is that the university Not try to uh limit the scope of debate And and so universities are about Exploring new ideas questioning Conventional wisdom and some of that Conventional wisdom is sometimes the Conventional wisdom that holds on the University campus itself um and so we Need to hold ourselves open uh to the Possibility that we're wrong about Things um and allow a lot of freedom for A wide range of ideas to be expressed um And for real challenges to take place um On University campuses but in addition To that internal purpose of the University itself I think it's worth Saying something about um an external Concern about universities uh Universities um built themselves up in The United States um uh especially over

The course of the late 19th and early 20th century by emphasizing to the Outside world and to important Stakeholders um that we will develop um Reliable expert knowledge um about um Important questions that matter to Society ranging from very practical Questions relating to Science and Technology um to uh more esoteric Questions relating to uh morality and uh Uh sociology and political uh life um And uh especially as we were creating Public universities there's a real Concern um of being able to establish That these new public universities we're Going to create were not going to be Captured uh by a single political party Or political faction um and uh we're Simply going to then propagate a certain Kind of of narrow ideology but these Universities were going to be genuinely Neutral um they were going to be open to Everybody um and they were going to Welcome a wide range of views and and Ideas and as a consequence the kind of Knowledge that was produced by those Universities could be trusted um by the Larger public and by people from a wide Range of perspectives one concern about Universities abandoning their position Of institutional neutrality um is that They uh can sacrifice that kind of trust Um that they will tell the outside world Uh we're not simply open to a wide range

Of views and letting and following the Evidence wherever it might lead um Instead uh we are recommitting ourselves To a set of uh particular partisan Commitments um and um and everything we Do should be read through that kind of Lens that's not going to be a happy Place I think for universities to be in The long run it's not going to be a Happy place for Scholars to be in the Long run uh if universities are going to Be successful and they're going to be Valuable um to society um they have to Be uh places uh they're willing to Accommodate um a wide range of views and And really willing uh to put their money Where their mouth is um in terms of uh Convincing people um that know we're Places where we take ideas very Seriously um and we're open to hearing a Wide range of views and Perspectives we need to hold ourselves Open to the possibility that we're wrong About things and universities have to be Willing to accommodate a wide range of Views if they are to be trusted as Transcending partisan commitment Eloquent words from Keith Whittington And Jeff Stone on this urgently Important question of the future of free Speech on campus Keith and Jeff it's Just an honor to convene both of you You're both such beacons of light and You help us think through these

Challenges by holding High the beacon of Reason uh thank you so much Jeff Stone And Keith Whittington for a wonderful Discussion thank you very much thank you Jeff so much really appreciate [Music] It today's episode was produced by Lana R Samson mesar and Bill Pollock it was Engineered by Bill Pollock research was Provided by Samson mesar Cooper Smith And Yara R dear friends on February 13th my new Book came out the pursuit of happiness Thank you so much for the wonderful Emails and notes if you would like a Book plate a signed book plate I would Be honored to send one to you please Email me at jren constitutioncenter.org If you would like one please recommend The show to friends colleagues or anyone Anywhere who's eager for a weekly dose Of constitutional illumination and Debate sign up for the newsletter at Constitutioncenter.org Connect and always remember whether you Wake or sleep that the national Constitution Center is a private Nonprofit We rely on the generosity the Passion the engagement the Devotion to Civil dialogue of people from across the Country who are inspired by our Nonpartisan Mission support the mission By becoming a member at Constitution Center.org membership or give a donation

Of any amount to support the work Including the podcast at Constitutioncenter.org Donate on behalf of the national Constitution Center I'm Jeffrey Rosen

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