In 1969, Belgian economist—and self-described “revolutionary Marxist”—Ernest Mandel was denied a visa for a planned speaking tour to American universities on the grounds that deviations from his itinerary on a previous trip constituted “a flagrant abuse of the opportunities afforded him to express his views in this country.”
A group of American professors—determined to “engage him in a free and open academic exchange”—took Mandel’s case all the way to the Supreme Court. Though Mandel lost on a point related to immigration law, the case is now best remembered for Justice Thurgood Marshall’s impassioned, stirring dissent. “The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin,” Marshall wrote. “The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is ‘the means indispensable to the discovery and spread of political truth.’”
Marshall’s “freedom to hear” is an arresting idea and a useful guide in making sense of the fracas at Stanford Law School earlier this month.
On March 9, a group of Stanford law students shouted down Kyle Duncan, a Trump-appointed federal appeals court judge, as he tried to deliver remarks at a campus event hosted by the Federalist Society. Duncan’s rulings restricting access to abortion and implicating trans-rights have elicited harsh criticism, including from many at Stanford. In the lead-up to the Federalist Society event, signs were posted around campus accusing Duncan of delivering transphobic, homophobic, and racist rulings, and at the event itself, a crowd of several dozen protestors heckled Duncan relentlessly, forcing him eventually to give up on his prepared remarks. And in a uniquely troubling twist, Stanford Law’s Associate Dean of Diversity, Equity, and Inclusion, Tirien Steinbach, took over Duncan’s podium after he had asked for an administrator to help restore order and, in her remarks, openly questioned whether Stanford ought to rethink its existing free expression policies. “Is the juice worth the squeeze?” Steinbach asked of the Federalist Society’s event. “Is this worth it?”
At the Foundation for Individual Rights and Expression (FIRE), where I direct our Campus Rights Advocacy work, we’ve spent more than 20 years pushing back against all manner of censorship from administrators. But the Stanford incident stood out as something new and different. For FIRE, it was a frightening coalescence of several trends within a particular strain of illiberalism that we’ve seen creep onto campuses and spread over the last decade. These appear rooted not in administrative overreach but in a desire by the students themselves for ideological and emotional safety. New in the last few years, and caught on video in all its brazenness at Stanford, is a growing penchant for using authoritarian tactics to obtain it.
Ten years ago, we saw the occasional “civility” initiative. Students who felt “unsafe” encountering ideas they disagreed with were asking faculty for in-class “trigger warnings” or demanding that speakers with unpopular views be disinvited. A few years later, we saw disinvitations dip and were briefly hopeful that students might be getting more tolerant. Not so. Potentially controversial speakers had simply stopped being invited at all. Now, with the widespread popularity of campus “equity” initiatives, calls for tolerance by means of intolerance have reached a fever pitch—of which the shoutdown at Stanford is a perfect illustration.
The Stanford incident has proven particularly controversial in part because of the hecklers’ insistence they were simply exercising their own “right to protest” and to engage in “counter-speech.” But the First Amendment, whose protections Stanford is bound to extend to students under California’s Leonard Law, does not permit “heckler’s vetoes.” As opposed to peacefully and contemporaneously protesting an event of which one disapproves, substantial disruption of the event itself is not “free speech” or “counter-speech”—it’s censorship. In other words, when hecklers shut down speech, there’s no speech to counter. Or, to borrow Justice Marshall’s coin analogy, one side of the coin features speech, the other “the freedom to hear.” Even if one makes the argument that Duncan—under the din of heckling—could have in theory continued his prepared remarks, what was indisputably lost was “the freedom to hear” and the “interchange of thought” that comes with it.
The trend towards intolerance on campus goes well beyond guest speakers. Recent data suggests campus conversations that dissent from a particular kind of progressive orthodoxy are routinely chilled by threat of punishment. Late last year, College Pulse and FIRE joined forces to survey nearly 45,000 students, over 60% of whom said they fear “damaging their reputations” if they speak their minds and that they “feel uncomfortable…expressing an unpopular opinion” to professors or peers. Similar questions posed to faculty in a different survey found that a third of professors describe themselves as self-censoring “often.”
Students or faculty who express dissenting views and don’t self-censor are frequently silenced by force. Unpopular views on social issues like race and gender are routinely reported to administrators as “bias,” “threats,” or “discriminatory harassment,” even where the conduct is wholly protected speech not resembling the legal definitions of those terms. And school administrators—who, nationwide, are overwhelmingly progressive—have shown themselves all too happy to launch formal investigations into controversial speech.
If censorship or other de-platforming efforts don’t work, students are more willing than ever to resort to violence. According to a recent Buckley Institute report, over 40% of college students said they viewed physical violence as an acceptable way to stop “hate speech” or “racially charged comments” on campus.
We’ve seen numerous violent altercations on campuses already this year, at the University of New Mexico, UC Davis, and Penn State. While the Stanford incident was not marred by violence, the event was heated enough to warrant Judge Duncan’s escort out by federal marshals.
Free speech advocates remain deeply troubled by what we saw at Stanford. But, on Wednesday, Jenny Martinez, the Dean of Stanford’s Law School, took a crucial step in the right direction. In a ten-page tour-de-force, directed to the Law School community, she painstakingly detailed what should have happened at the Duncan event, described the failings that caused Stanford to fall short, and outlined necessary steps for moving forward. Importantly, she didn’t simply commit to enforcing existing policies but delineated a broader philosophy of teaching students the importance of expressive rights in society.
It is a particularly encouraging sign that Martinez quotes from The University of Chicago’s 1967 Kalven Report—a gold-standard free speech statement—in her explanation of why administrators should avoid using their authority to censor speech. While Stanford must honor students’ First Amendment Rights, the Kalven Report goes further, explicitly committing universities to fostering a healthy atmosphere of dissent and exchange on campuses. “The university is the home and sponsor of critics,” argues the Kalven Report. “It is not itself the critic.” This need to grapple with opposing points of view, Martinez contends, is nowhere more important than at a law school. “Just as doctors in training must learn to face suffering and death, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys,” Martinez writes.
Martinez, taking cues from both the Kalven Report and Justice Marshall, offers a promising roadmap for fighting back against the growing use of authoritarian tactics on campus —a problem that is not only confined to the campuses themselves. When universities don’t push back against those who would forcibly sanitize a universe of words, ideas, or views they dislike, they teach our next generation of leaders that power is earned not by having the best ideas but by engaging in misconduct or by resorting to violence.
The radical, beautiful idea behind free speech commitments like the First Amendment has always been that there’s a better way to resolve differences than brute force censorship. What we saw at Stanford represents the advent of a very different perspective—holding that some views, even those of a federal judge, are so “harmful” that they must be forcibly suppressed, and drowned out, by both students and administrators. To her great credit, Dean Martinez appears to have recognized the stakes involved and has set a precedent that should be followed by other school administrators as the trend of censorship-in-the-name-of-equity continues to gain popularity. If universities fail to recognize their role in fostering our collective social and political values, and fail to educate students about the importance of free expression, their graduates will surely go on to fail the rest of us.
Alex Morey is a First Amendment attorney and journalist. She leads the Campus Rights Advocacy team at FIRE.
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Beyond the issue of the abrogation of free speech on college campuses, there is the question of how well we are preparing our students for life away from academe. I have to believe that most students do not engage in activities that restrict free speech. However, in today's higher education environment, too many students will never have the opportunity to express and defend an unpopular opinion. Progress depends on the constant questioning of accepted dogma even on college campuses.