1. The Need for Mutual Forbearance
  2. Liberalism Starts with the Individual
  3. Restoring Liberalism
  4. Be a Fox, Not a Hedgehog
  5. Too Much of a Good Thing
  6. A Matter of Trust
  7. What We Share
  8. Liberalism and Markets
  9. Social and Political Trust
  10. Shaking Hands and Building Relationships
  11. Confident Pluralism
  12. Defending the Constitution of Knowledge
  13. Reaching Our Potential as a Liberal Society
  14. Remixed Religion in America
  15. Speaking Freely in American Universities
  16. Human Beings, Together and Alone Scheduled for 2021-11-29

 

In this installment of a series on liberalism, Benjamin Klutsey, the director of academic outreach at the Mercatus Center at George Mason University, talks with Keith Whittington about his latest book, “Speak Freely: Why Universities Must Defend Free Speech,” his work with the Academic Freedom Alliance, free speech on college campuses, self-censorship and much more. Whittington is the Nelson Cromwell Professor of Politics at Princeton University. In addition to “Speak Freely,” he has written several books on constitutional law and the judiciary, and he hosts the Academic Freedom Podcast.

BENJAMIN KLUTSEY: Thank you very much for joining us, Professor Whittington.

KEITH WHITTINGTON: Thanks for having me. I appreciate it.

KLUTSEY: All right, so we’ll just delve right in. Earlier this year, you co-founded a new organization with the aim of defending academic freedom, and it’s called the Academic Freedom Alliance. You also recently published your book, “Speak Freely: Why Universities Must Defend Free Speech.” I’d like to start off by asking you to look at the current state of affairs with regard to academic freedom. What do you see when you look across university campuses in the country? Is academic freedom robust and on the rise, or is it in decline?

WHITTINGTON: Hopefully it’s not in decline, but I think we are certainly in a moment of real pressure on it. One is often hopeful that there is a golden age you can point back to and say, “Oh, well, everything was great then. If only we can get back to that.” Unfortunately, I don’t think there’s ever really a golden age. It’s not true in the context of academic freedom and universities. It’s not true for free speech in general, but we certainly have had periods that are better than others.

I think we’re currently in a period that’s really not as robust in its protections and the culture of academic freedom than was true, for example, when I first got into academia a couple of decades ago. We see a lot more stress on the system, in general, a lot less respect and interest in the core principles of free speech, fewer procedural protections for academic freedom than once were the case.

As a consequence, I think an organization like Academic Freedom Alliance really became necessary, precisely because I think we are in a crucial moment to try to turn the ship around and offer better protections for academic freedom going forward. I do worry that if we don’t do a good job with that, we will wake up 10 years from now, for example, with a much worse situation relative to protections for academic freedom than most people would have expected

The Role of the University

KLUTSEY: Right. Now, we’ll come back to the organization, Academic Freedom Alliance. Before we do that, let’s talk a little bit about your book “Speak Freely.” In that book, you talk about the mission of the university, which includes producing and disseminating knowledge, and the role of freedom of speech in advancing this mission. Can you unpack this for us?

WHITTINGTON: Yes, the book is particularly concerned with the free speech environment on college campuses, in particular. It makes an argument as to why we ought to care about free speech broadly. In hindsight, I actually don’t spend enough time talking about academic freedom, in particular, in the book. There are some distinctions between how we think about free speech and academic freedom, in general, that are worth noting.

Free speech, of course, is relatively familiar from the general context of American citizenship, in which one has the right to speak one’s mind without fear of legal sanction, generally is what we’re most concerned with protecting free speech, at least from a constitutional perspective. Academic freedom is a little bit different in that it’s focused on usually three core components as it’s been articulated across the 20th century by the American Association of University Professors, which is an American organization that was concerned with advocating for academic freedom and for tenure protections in American universities.

It highlights, in particular, academic freedom, protecting the right to teach controversial subjects without fear of sanction or discipline from university employers; the ability to publish freely your research and scholarship without sanction from your employers; and your ability to participate as a citizen and speak out on issues of public concern in the general public sphere, without concern for reprisal from university employers.

That’s a somewhat more specific set of freedoms than when we think about free speech more generally, but particularly relevant for university faculty and how universities operate. I think there the general concept of free speech is quite important to making universities work. We care about free speech from a democratic perspective because it allows us to criticize our government officials. It allows us to be able to foster free and open elections that allow us to replace government officials, make better government policy, and the like.

There are contexts in which we value free speech and related concepts for their own sake. For example, we think about the concept of artistic expression and the desire for individuals to be able to express themselves freely without concern of censorship and reprisal.

In a university context, we have a very specific interest in free speech, which is free speech is the tool that we use to advance human knowledge. If we subvert that and we constrain what kinds of questions people ask, what kinds of answers they can give, how they can pursue critical inquiry generally, universities will not be very good at accomplishing the primary thing they’re supposed to be accomplishing, which is advancing human knowledge and disseminating what we know to our students, to the wider public, to other scholars more generally. Universities would be sacrificing something really quite essential to the degree that they cut back on that freedom to engage in critical inquiry on college campuses.

The book is really concerned with trying to explain that relationship between the core mission of what universities do in pursuing the truth and free speech principles in general. As a consequence, while in a university context, we ought to be particularly concerned with trying to protect free speech, and then try to apply that to various kinds of controversies that have arisen in which people have proposed curtailing freedom of thought and freedom of speech on college campuses. I want to suggest various ways in which that’s problematic. We ought to think about that a little differently if we hope to retain what’s valuable about American universities.

Free Speech and Academic Freedom

KLUTSEY: Great. You would agree that free speech is certainly the cornerstone of academic freedom.

WHITTINGTON: Yes, absolutely. Among the things that are a little different, for example, between academic freedom of speech, in general, is they’re both obviously concerned with freedom of thought, the ability to express yourself without sanction by others and without prior censorship. On the other hand, academic freedom does come with a set of responsibilities that we don’t think is true of the average citizen exercising free speech more generally, for example.

As today, we’re concerned about academic freedom in the classroom—the ability to teach controversial subjects in the classroom—that’s driven by a concern to say that the professor who’s leading a discussion in a classroom has a set of subject matter expertise and should have the freedom to be able to guide students through that difficult subject matter without, for example, alumni or community members getting upset that you’re talking about things we find controversial and disagreeable in your classroom, and wanting to sanction you for having done that and try to shut down that kind of speech.

On the other hand, we also know the instructor in a classroom has a captive audience of students. They have a particular subject matter they’re supposed to be covering. They have a certain expertise, and as a consequence, they shouldn’t be using that platform, for example, to talk about controversial things unrelated to the topic of the class.

You don’t want your engineering professor to be spending all of the class time talking about how students ought to vote in the next election, for example. It’d be quite reasonable for the university to step in and say, “Look, you’re not doing what you’re supposed to be doing in the classroom.” It’s not an infringement on somebody’s academic freedom to tell them, “Cut that stuff out; talk about engineering and instruct the students in the subject matter. Don’t spend your time talking about how the last election came out and what you think of it.” In the context of an average citizen, that’s not so true. We expect, in fact, people to have a freedom to talk about whatever they want in a variety of other contexts.

Likewise, we expect the engineering professor to give to the students the kind of knowledge that is professionally expected. That is to say, we expect them to do a good job in teaching engineering and to teach things that other engineers would regard as true knowledge to those students. If instead, it turns out that particular professor has some completely wacky set of ideas about engineering that go completely against the grain of what the profession regards as professionally competent more generally, likewise, the university might want to step in and say, “Look, you can’t be teaching these students these crazy theories that no one agrees with. In engineering, they need to learn how to build a bridge that is actually going to stand up. You can’t be telling the students that there’s no such thing as gravity if they really don’t believe in it,” for example.

If it’s an average citizen, we expect that they want to say, “Look, there’s really no such thing as gravity. Let me tell you why.” They have the right to do that. A professor in a classroom doesn’t necessarily. Academic freedom does have a set of restrictions on it that we don’t think of free speech more generally. They’re both centrally concerned with giving people the freedom to talk about controversial things, explore controversial ideas without having those inquiries shut down simply because people disagree with them or find them offensive in some fashion or think they’re headed off in the wrong directions. There’s a close overlap between the core of why we’re concerned about free speech and the more narrow, specific concerns associated with academic freedom as such.

Dealing With the Problematic Past

KLUTSEY: With regard to the mission of the university, which is to produce and disseminate knowledge, I think in the book you write that the first step in that effort to produce knowledge is to remember what has come before. There are those who find what has come before problematic, might offend their moral sensibilities or might generate emotional, psychological trauma. How do you respond to this critique of remembering and reviewing the past when the past is considered offensive?

WHITTINGTON: The past is often offensive. The present is often offensive as well. Sometimes what you have to do, as a scholar and as a teacher and as a student who wants to take the subject matter seriously, is to be able to look frankly at things that are pretty offensive and disturbing in lots of ways. There are various reasons why we might imagine that to be true.

For example, in the humanities, what we would think is part of what the humanities are trying to accomplish as a bundle of disciplines, and part of what you try to do in both scholarship and teaching for the humanities, is try to filter out what’s best about the past and try to convey that information to future generations as best we can. That’s an ongoing process of trying to assess what’s actually worth saving and what’s worth throwing away. Part of what you’re doing as a scholar is making judgments about what kind of information is actually worth retaining and has stood up to the test of time, stood up to critical inquiry, such that there’s something valuable there that needs to be conveyed, and what kind of information just doesn’t.

It’s an ongoing conversation about which of those ideas need to be discarded and which of those ideas need to be retained and moved forward. We can’t do a very good job of even assessing that and making decisions about what ought to be discarded and what ought to be carried forward, unless we’re willing to look at information in a straightforward way, including offensive things about the past.

Sometimes in some disciplines—imagine history, for example—the whole point is to retain information about the past, and how often it’s going to involve having to look at things that are quite disturbing. There’s often pressure not to do that. The way you phrase the question, it certainly highlights what we see, to some degree, among students today of objecting to things that they find offensive in some fashion and saying, “We ought to remove that from the curriculum or remove that from teaching or shut down conversations that involve that controversial material.”

You could see that pressure coming from all kinds of directions. There’s a constant, for example, larger political concern with trying to use the past to advance current political projects. Sometimes that means hiding away the unpleasant aspects, unpleasant relative to the particular goals that you have for the present, while trying to highlight or invent things that seem more appealing and more attractive.

Part of what scholars want to be trying to do is look past some of that, to be able to look more frankly, more clear-eyed at the past, and see what’s there and be able to express it—warts and all—to the students and to other scholars. We’re going to not be advancing the truth, not be learning the truth, but instead find ourselves simply trying to advance a set of falsehoods, if we are not willing to deal with the fact that the truth is sometimes unpleasant and controversial and difficult.

As a consequence, sometimes we have to just grapple with that fact that the past is sometimes offensive, but like I said, certainly sometimes the present is equally offensive as well. We’ve seen those kinds of controversies arise as well. In the early 20th century, some of what helped create the American Association of University Professors in the first place was precisely people doing, for example, social science research, sociological research about public opinion, about what students think, for example.

Parents and alumni were often very offended when faculty were exploring questions of what kinds of religious beliefs students had, for example; what kinds of sexual mores did students have, for example. The alumni would put pressure on university presidents to shut down that kind of research and teaching on those kinds of topics. That’s not about reoccurring the past; that’s about parents not liking what the kids might say if they ask them certain questions.

There’s often a question about who’s going to be offended if we’re trying to gain knowledge? The answer often is somebody is going to get offended when you’re trying to gain knowledge. The goal of a scholar is to push past that and do the best we can to gain true knowledge, despite the fact that some people are going to be disturbed by it.

Censorship and Speech Codes

KLUTSEY: Now, in the same vein, this challenge comes from both the left and the right, and you’ve recently written on the new wave of laws banning the teaching of critical race theory and how this tactic will ultimately be self-defeating. Can you explain that, and maybe describe how laws like this—whether they are championed by, you might call them, authoritarians on the left or the right—will it actually achieve the goals they’re setting out to?

WHITTINGTON: Yes, certainly I think we do have a lot of pressure to shut down speech on university campuses that comes from both the left and the right. I think both sides tend to focus much more on the other side and the kinds of worries they have about the threats that are posed by the other side. From my perspective, I think part of what’s disturbing about our present situation is precisely that there are threats coming from all sides. It’s hard to say we’re safe if anyone is running the show.

And it is certainly true that a lot of the pressure from the left is often expressed locally. That is to say, it’s coming from the university campus itself. University campuses tend to lean to the left; students and faculty administrators tend to lean to the left. A lot of the pressure for silencing speech that arises on campus often comes out of those more left-wing tendencies. On the other hand, the larger community of alumni, donors and media, et cetera, are often much more to the political right. They bring pressure to bear on universities as well to try to shut down speech.

One example of that lately are these critical race theory bans being promoted in some state legislatures. Some of those are focused on K-12 education and trying to restrict what happens there. Obviously, when it comes to public schools and primary and secondary levels, state governments have a lot of authority to determine what the curriculum ought to look like, what the teaching ought to look like as well. I think these laws are pretty crudely written. They’re not a very good way of doing it, but they have a lot more authority, at least, to regulate in that space.

Constitutionally speaking, though, we tend to think that they have a lot less authority to regulate what’s happening on university campuses. Quite a few of these bills don’t limit themselves to K-12 education but also reach into universities and try to restrict what happens there as well.

Part of the problem, I think, of these critical race theory bills is very similar to the problems with speech codes that campuses wanted to adopt themselves in the late ’80s and the early ’90s. Administrators often thought that some controversy arose on their campus; somebody said something that was particularly disturbing or got bad public attention or offended students in some fashion. They tried to develop a code: “Okay, let’s figure out a set of rules that will prevent these kinds of controversies from arising in the future, and how do we suppress this kind of speech?”

On the one hand, it was bad to suppress ideas in the first place. Going after particular ideas as offensive and then trying to stamp those out has its own problems in terms of what it is we’re trying to do on university campuses and our ability to grapple with controversial ideas. One of the problems with those early speech codes as well was that they often wound up being written in a way that they cast a very broad net over speech in general, precisely because they wanted to capture all the controversial things that might happen down the road.

“Let us write this very loosely worded speech code that doesn’t give people very good warning about what kind of things are actually prohibited and allows administrators a lot of discretion in the future to sanction people for having said something that might run up against the speech codes.”

The same thing is true of these critical race theory bills as well. If they are written with very broad language, they provide very little guidance to university officials or teachers, for example, as to what kinds of things are allowed and what kinds of things are prohibited. It’s very easy to imagine discretion being abused in order to sanction people for having done something that they thought was completely consistent with the code but can be read as inconsistent with the code.

When you’re trying to draft one of these censorship laws, whether it’s a local speech code or a law that’s designed to ban—that sometimes is framed in these bills as divisive concepts in various ways—the problem is if you write it too narrowly, you’re going to miss some of the stuff that you are trying to suppress. If you write it too broadly, you’re going to wind up suppressing a whole bunch of stuff that, even from your own perspective, is innocent and shouldn’t be suppressed.

As a general matter, that’s why it’s not a good idea to engage in these censorship projects in the first place, just because they’re very hard to do well even from the perspective of the censor, which is often not a good perspective one would want to adopt. Even if you were to agree with the censor that, “Oh, yes, that stuff is really bad. I wish I could really suppress that,” it’s just extraordinarily hard to do it in the refined way that would only suppress the stuff that you think really needs to be suppressed and will not have all kinds of consequences for lots of other speech and lots of other consideration of ideas that even the censor themselves would look forward to leave alone.

Lessons From the Sedition Act of 1798

KLUTSEY: Right. This stuff is not new either, right? One of the things that I learned in your book was when you talked about the Sedition Act of 1798. It seemed to me that there might’ve been one of the first major attempts to curtail what one might call fake news or offensive speech and place some limitations on the freedom of speech provisions, right?

WHITTINGTON: Yes. I find the Sedition Act of 1798 weirdly fascinating, in some ways, because it does echo so many of the debates we still have. Sometimes in a slightly different language, but often in language that’s remarkably familiar because it all just goes back to the same and constant issues of how do you suppress the speech you disagree with and leave in place the speech you agree with?

The Sedition Act of 1798 was designed by the Federalist Party in Congress, which had the majority at the time, to suppress speech that they thought was dangerous to the stability of the government and tended to bring the government and government officials into disrepute.

From their perspective, anything that tended to subvert the authority of government officials could potentially threaten the republican project itself. They could imagine the government itself could collapse—you could imagine dictatorships arising or anarchy breaking out—if people no longer trusted their government and no longer respected government officials. Speech that was designed to undermine the respect and authority of government officials was potentially quite dangerous.

From their perspective, the particular kind of speech they had in mind was the kind of speech being advocated by the Jeffersonians, which was the rising opposition party. This was the first emergence of a two-party system in the United States, where you actually had an opposition party challenging the incumbent political party. Unsurprisingly, the incumbent political party thought all the speech that was being articulated by the opposition party was dangerous and subversive and, as a consequence, needed to be crushed if at all possible.

The Sedition Act was the first effort by the federal government to adopt a law that criminalized some kinds of speech, speech that brought government officials into disrepute in various ways. It borrowed from British common law and some of the legal inheritance from Britain; in some ways it liberalized the English inheritance. For example, in England, it was a crime of seditious libel to bring government into disrepute, and truth was no defense. You said truthful things that tended to undermine respect for the government, that was even more dangerous, from the government’s perspective in England.

The Federalists were much more liberal than that. They said, “Well, okay. Truth is actually going to be a defense under this law. It’s only the false things that we’re going to try to suppress.” Part of what we discovered through this episode is, one, that that actually is a very hard distinction to continue to draw. If you’re trying to say, “Well, look, we only want to go after the fake news, but the real news, we want to leave in place and we’re not going to criminalize that.”

It turns out in practice, especially when you’re talking about political speech, it’s really hard to draw that line. It’s really hard to trust government officials and jurors and prosecutors and judges, for example, to be able to toe that line very effectively. A lot of printers then found that their claims of what they were saying were truthful were often not sufficient to escape the punishment of the government under those circumstances. A lot of people then were very nervous, of course, about criticizing the government because even if they thought what they were saying was truthful, they were worried that, nonetheless, they might be out criminally liable for having said it in the first place.

One kind of lesson that emerges out of that experience was that while you might think that you’re trying to draw a quite reasonable line between the fake news and the real news—and it’s only the fake news that we’re trying to get rid of through these things—the consequence of trying to abolish the fake news at all will wind up—especially in a polarized, partisan political environment—will wind up being very sweeping and take out a lot of speech that even from your own perspective, again, you think ought to actually be protected and allowed.

The other thing that we learned, of course, from that experience—and I think is just a general lesson anytime we think about trying to suppress speech—is it’s always going to be this question of who gets to decide which is the speech that gets punished and which is the speech that doesn’t. The whole reason why we want to suppress this kind of speech is precisely because it’s controversial. It’s controversial, though, because some people agree with it and some people disagree with it. The whole ball game becomes, well, who gets the power to suppress the stuff they disagree with?

In the context of the Sedition Act, that meant incumbent government officials got to make the decision about what kind of speech they thought was dangerous to government officials. Unsurprisingly, they tended to think all the speech coming from their electoral opponents was very dangerous to the government and government officials, and so they definitely wanted to suppress it.

We see that same play being made by censors all across American history. When you empower them to make those decisions, that they get to suppress speech that they find particularly dangerous, they often wind up suppressing speech that they personally find very dangerous, but most other people might find not dangerous at all. We’ve even seen that in the university context, for example. It used to be the case, really until relatively late in the 20th century, that university presidents had a great deal of authority to expel students who engaged in speech that they regarded as detrimental to the university in various ways.

Which often meant that, for example, you could write an op-ed in the student newspaper criticizing the university president, and the next thing you know you’d find yourself expelled, precisely because the university president would take the view that this is dangerous and damaging to the university, and you shouldn’t be allowed to say that kind of thing. Whether we’re talking about little petty dictators, like university presidents, or we’re talking about big dictators, like presidents of the United States, if you give them the power to censor speech they will tend to use that in ways that, in hindsight, we’re likely to regret. It’s best not to give people that kind of power in the first place.

The Case Against Free Speech

KLUTSEY: Now, John Stuart Mill features quite prominently in your book. He lays out a very expansive principle of free speech. In the spirit of Mill’s encouragement to know the other side of one’s arguments, can you provide a robust case for why one might think we’ve come to a place in society where we need to curtail speech? What’s the case against free speech?

WHITTINGTON: I think it’s an interesting question. I think, in part, we can actually make some headway. I find myself more sympathetic with the idea of curtailing speech to some degree, if we’re more specific about the specific contexts in which we want to do it. I think American constitutional law is actually in a pretty good place; it’s highly protective of free speech in general, and I think it should be. We ought to be extraordinarily distrustful of government officials using the power of law to sanction speech and suppress speech that they disagree with for various kinds of ways.

It may well be that we look at speech in society and think, “Well, that’s really unfortunate somebody is saying that. We’d all be better off if they didn’t.” We ought to be extraordinarily nervous about then empowering the Justice Department to make that call to help us out by suppressing speech. On the other hand, I think there are lots of other more specific contexts in which restraining speech is actually quite reasonable and appropriate. I mentioned one already.

For example, in a university classroom context. If a university professor were to spend their class time ranting about the current president of the United States, it would be quite reasonable for the university president to step in and say, “This is not what you were hired for and not why we put you in the classroom. We expect you to restrain yourself a little more. If you’re not going to restrain yourself, we’re going to have to remove you from this classroom, put somebody in place who will actually teach the subject that you’re supposed to be teaching.” We expect some restraint from a teacher with a captive audience, and we expect some restraint in terms of what information they convey, what arguments they convey, et cetera.

Likewise, we might imagine that we expect the media to exercise good judgment and restraint in various ways. We expect editors of mainstream news outlets to exercise some editorial discretion about what’s worth publishing in our pages, and what’s not worth publishing in our pages. What do we actually have some confidence might actually be true and what’s not? What’s a set of important debates that need to be hashed out in our pages of our op-ed pages, for example? What’s a fringe debate that isn’t worth giving greater attention to? There’s nothing wrong, I think, with editors exercising that kind of discretion.

I think we’d be much more nervous about it if we thought any kind of particular media enterprise had the monopoly power to totally control the kind of speech that occurs in society more generally. It’s part of what distinguishes the government from a newspaper editor in that context.

Whereas we might expect a newspaper editor to say, “Well, that doesn’t belong in The New York Times. We’re not publishing that because we aren’t confident that it’s true. We think those opinions are too out there and not worth discussing.” If The New York Times was the only place one could publish something, however, it’d be a little more problematic if we thought that a single editor had that kind of authority, and that’s the position the government is in.

If the government decides, “No, that’s not an opinion worth hearing. Those aren’t facts we think are reliable enough, and therefore we’re going to use criminal law to suppress that kind of speech,” we’re in a much more difficult situation. I think there are contexts within civil society, in general, in which we expect people to exercise discretion and restrain speech in various ways.

I think we ought to be extraordinarily cautious about empowering monopoly power holders, whether they are government officials or others who find themselves in similar situations, from being able to use that monopoly power to suppress the ability of other people to say things that those power holders might find discomforting or appealing or wrong-headed.

Institutions and Filters

KLUTSEY: What you’re saying reminds me of Jonathan Rauch’s book “The Constitution of Knowledge: A Defense of Truth.” He was on the podcast a few episodes ago. He was saying that you have to rely on these professional ethics, institutions, norms to ensure that the types of things that we are talking about are refined and, over time, become more and more accurate. If the journalists are doing their work properly, if the academics are doing their work properly, then the ideas that we were batting around are all part of this marketplace of ideas. It sounds like that’s what you’re saying.

WHITTINGTON: I think that’s right. I think Rauch is certainly on the right track. There are a lot of great things in that book. And this sociological ecology that helps support truth-seeking, I think is, in fact, very important and something I think Mill hadn’t really thought through. And part a lot of these kinds of institutions and professions arose after Mill’s time. The modern university in its current form, for example, didn’t really exist when Mill was writing.

Mill’s often really—when he’s thinking about building up a free speech culture in which all ideas are welcome, and we’re going to hash them out in open debate with all comers—he’s really imagining a debating club, which is the kind of thing he was involved with and was important to the civil society he was engaged in. From that perspective, he thought, “Look, those of us who are joining this debating club should welcome anyone to come in and make their arguments best case they can, and we’ll hear it out. We’ll make the counterargument and then we’ll come to some judgments.”

Mill, at one point, says, “The only thing that’s not worth hearing an alternative perspective about is math, because there’s no debating math. Math is just true knowledge, but everything else is up for grabs and we should hear what the countervailing arguments are.” That may make sense for a lot of debating clubs, how they ought to be established. I think it does make sense if we think about that as the attitude the government ought to take, because we don’t want the government making those decisions.

On the other hand, we do expect, for example, the geology department in a university to be able to make some decisions about, “Do we need to hire the professor who’s going to teach the flat earth theory, or can we safely exclude that from our current state of knowledge and think it’s okay, the students are going to be fine if they don’t hear a lot of lectures about flat earth theory?”

You’re making some judgments about what kind of knowledge hasn’t risen to that level of being worth debating right now, what’s been thrown into the trash heap of bad ideas. One thing we have to be very cautious, then, in the university context and civil society more generally is, one, you don’t want to toss things into the trash heap of bad ideas too quickly. And we always have to be willing to take it back out again.

If somebody comes along and says, “Look, there’s this idea we rejected 50 years ago, but I’ve got a different angle on it. I’ve got new evidence. I’ve got new arguments that actually can dust this idea off and make it worth something,” you ought to be willing to hear that out, in order to know, maybe there’s something then worth recovering and we ought to take that seriously again. And academic disciplines that are robust and work well are precisely open to those challenges.

To engage in that revisionism, to say, “What we thought was true turns out to be oversimplified. Now we have to modify that. And modifying it, firstly, what we’re going to take on board are some things we tossed aside at one point in the past.” At least in the moment, you’ve got to make some judgments about what, at least as we can see it right now—for example, flat earth theory doesn’t have a lot going for it, so it’s not worth investing a lot of new time, energy and resources into hearing that debate all the time and integrating it into our system.

You want a porousness to ideas. You don’t want your filter to be so strong that nothing is ever let in. As a consequence, there’s conventional wisdom that gets ossified. You don’t open it up to challenges. On the other hand, you also do have to have some filter, where you as a civil society can set some ideas aside and say, “Look, in our best judgment, that’s not worth continuing to talk about. Time to move on and talk about some other ideas.” We shouldn’t have to continue to rehash.

Look, it would really be great to have an absolute monarchy in the United States. At some point, you make the decision and say, “No, look, a democracy is a pretty good idea. We’re going to stick with that for a while.” We really don’t need to hear you out when you walk up and say, “No, no, I ought to be the monarch now.” I think we ought to be reasonably comfortable we can set that idea aside and not give it a lot of airtime.

Legal vs. Cultural Speech Protections

KLUTSEY: Now, I often wonder, we have the legal provisions that help us sustain free speech and viewpoint diversity and these types of things. We also have the civic practices and the norms and the habits and the things that we developed within the culture to foster a freer speech ethos, if you will, in society. What carries a heavier weight, in your view? I imagine it’s both, but it seems as though fostering the culture within the society is probably very, very important in this context.

WHITTINGTON: I think the answer certainly is both, and it may depend a little bit on what the scale is you’re thinking about as to which one becomes more important. In general, I tend to think that rules and policies and law are all ultimately downstream from culture and ideas. One reason why I was concerned about writing the book, “Speak Freely,” and talking about these issues in general, putting it up higher on my scholarly agenda—this ought to be something I talk about, and ought to be something I talk about to a broader audience and not just a very insulated academic audience.

One of the reasons why I wanted to be involved in the Academic Freedom Alliance is precisely out of a concern that even if our rules and policies and laws right now are pretty good, they might not continue to be that way if society gets taken over by a bunch of bad ideas about free speech. Among the ideas you’ve got to fight about is what’s the scope of free speech and how well do you defend it. And that requires, ultimately, a conversation. You can’t just rely on a set of rules and practices because, at the end of the day, those rules and practices will give way if bad ideas become common enough and people start embracing a different view about what those rules ought to look like.

Rules can only get you so far. In addition, there’s a whole bunch of things that rules just can’t do for you at all. You really rely on people exercising some good judgment. You rely on some norms. While rules can provide a good backstop to a lot of that, you will have a pretty bad culture and a pretty bad situation, in terms of your ability to engage in truth-seeking, if norms and social practices aren’t very good, on the other hand.

To take one of the examples that people worry about with college campuses today, that’s just extraordinarily hard to get at—precisely because you cannot get at it from a perspective of rules—is you can have all the great rules you want in terms of protecting free speech, in terms of academic freedom and the like. But if it turns out that everybody is really nervous to speak their mind in the classroom or to say something that might be unpopular because they’re going to get iced out from all their social and professional settings—their colleagues are no longer going to talk to them, the other students not going to sit with them at the lunch table, nobody’s going to be their friends anymore—that’s going to be a very chilling environment. People are not going to speak their mind. People are not going to say something that other people might disagree with if they worry that the backlash, the social backlash, is going to be so severe. If it’s simply not worth speaking up in that context, people will conform themselves to majority opinion out of fear of social ostracism.

You can’t solve social ostracism problems with rules and policies; that’s ultimately a function of culture. It’s precisely the kind of thing that Mill worried about, actually Alexis de Tocqueville worried about, when he looked at democracy in America. Part of his concern is that one thing that comes up along with democracy is the weight of majority opinion. He worried that individuals would become very conformist because they would fear stepping out of line with what all their neighbors think.

Part of what I’ve always loved about universities, American universities, at least in the 20th century, is that American universities have been places where people can think differently from their neighbors, that we welcome people who have disagreeable ideas—and sometimes disagreeable personalities—and are willing to state those ideas, and you can hash out debates, and you can have really serious disagreements. Then you can go out and have dinner with those people afterwards. That you enjoy the debate, you enjoy the disagreement, that you enjoy the fighting over ideas, and that’s what universities are supposed to be for.

It builds a community of people who are united, not because they all think the same, but because they all value the fact that people are going to think seriously and take ideas seriously and are willing to be open to the fact they might be wrong. They want to hear the criticisms and engage with those criticisms in general. Universities don’t work that well if instead everybody comes into it with an attitude of saying, “Well, look, I don’t want to step out of line. I don’t want to make people nervous. I don’t want somebody to think I said something wrong. I’m going to be very cautious about what I say. I’m going to go along as much as possible with what everybody else thinks and says.”

You can have all the free-speech-promoting rules you want, but if everyone’s approaching things with that attitude, you’re not going to get new ideas. You’re not going to get a rich debate. You’re not going to expose the flaws in people’s ideas, and it’s going to be a pretty stultifying environment on the whole. I think in the long run, culture is extraordinarily important and even in the short run. If you’ve got some great rules in place, it’s just not going to be enough unless you have the right culture and attitude within those institutions as well.

The Academic Freedom Alliance

KLUTSEY: Now, back to the Academic Freedom Alliance, tell us what it is and what issue it’s trying to address.

WHITTINGTON: Yes, so the Academic Freedom Alliance is a new organization. We’ve only been in place for a little over a year now, maybe not even a year at this point. It’s a bipartisan group of university professors. We’ve really tried to assemble faculty from across the ideological spectrum that disagree with each other about all kinds of substantive issues. What we all agree on is precisely the importance of universities being places where we can have disagreements, that they are places where we ought to be able to debate ideas.

This is a faculty-driven organization that’s concerned with defending faculty and their contractual and constitutional rights to exercise academic freedom from sanction. We’re focused on American universities in particular because the laws are particular in the United States. Things are a little different in other countries. We’re concerned with academics across the board, no matter what kind of institution they’re concerned with. The core concern is to protect them in their exercise of academic freedom from sanction by their employers.

Again, of course, it’s true about free speech. It’s true about academic freedom. That is not to say we’re concerned with protecting people from criticism. People should be open to criticism, and they are going to get criticism when they say controversial things. What we insist on is people shouldn’t be sanctioned by their employer for saying controversial things. The mere fact that people disagree with them is not sufficient grounds for people being suspended from their teaching duties, being fired by their university campus and the like.

We will try to provide moral support. We will try to provide public attention and provide arguments to universities to encourage them to live up to the academic freedom commitments that most American universities, in fact, have made to their faculty. If push comes to shove, we’re willing to help litigate on these issues in order to vindicate people’s rights when they’ve been violated by universities.

KLUTSEY: I see. I think Jonathan Rauch described it as the NATO of academic freedom. I think your tagline is, “An attack on academic freedom anywhere is an attack on academic freedom everywhere.”

WHITTINGTON: I think that’s right. It undermines the culture. It’s also true that when individual faculty find themselves in the midst of some free speech controversy, whether they’re being attacked by people on their own campus or they’re being attacked by some internet mob of people unhappy of something they’ve said in public, they feel very isolated. They feel very alone, and often administrations are willing to throw them under the bus.

Part of what’s important in those circumstances is for people to come to their assistance and emphasize to them, “Look, you’re not alone. You, in fact, are in the right here. You have the right to speak your mind on this even if we disagree on the specific thing you said,” which often is going to be true. “You have the right to say it. You have the right to stand up for your ability to say it, and people are going to stand with you on that and help provide you with guidance, provide you with advice, provide you with support and including, if necessary, legal support to vindicate those rights.”

One thing that helps censors out is if they can isolate their targets and single these people out and say, “Look, we’re just suppressing the bad idea here. And surely the rest of you don’t agree with this idea that somebody expressed, these words somebody said, and so it’s okay if we punish that person for doing this.” What’s crucially important is that we recognize what the universal principles are here. That if a government official or university administrator comes after somebody for saying this one day, they’re going to come after somebody else for something different the next day, and soon it’s going to be your ox that gets gored.

You’ve got to be willing to stand up for people, even if you disagree with them. If they’re exercising their rights to be able to speak, you have a stake in defending their right to be able to speak, even when you disagree very deeply with the substantive content of what it is they’re saying.

That’s a hard principle to work. In practice, it goes against human instinct, because you hear somebody say something that you find particularly stupid or offensive or dangerous. It is not your instinct to say, I’ve got to defend that guy in saying this stupid, offensive, dangerous thing, this thing I substantively disagree with. Part of what you want a civil libertarian culture to do is to recognize that what’s at stake in these controversies is not only the substantive thing that we can disagree about, but also the underlying principle of, can we freely talk about it.

It’s crucially important to be able to defend people’s ability to freely talk about it even when we disagree with it, and that’s hard to do. It’s hard to do in the context of individual controversies, but the Academic Freedom Alliance in part is really trying to organize to help universities recognize what their long-term self-interest is and actually stick to the principles that they say they’re committed to.

KLUTSEY: Right. Do you offer any support to the students as well? As you know, there is some data that shows that students are self-censoring; they’re worried about what colleagues might think on campus.

WHITTINGTON: Yes, there’s no question student rights are very much under threat at universities as well, both from this self-censorship and peer pressure problem, but also simply from university administrators and others wanting to sanction students for their speech. There’s a narrow set of students who are directly implicated by our principles and our organization when they themselves are engaged in scholarly tasks. Graduate students who are serving as teaching assistants, for example, or instructors, fall under the exact same academic freedom rules as regular professors do, and ultimately defended in exactly the same kinds of ways.

There are other contexts in which students’ speech might be restricted by universities. It’s mostly outside the range of what we’re trying to do as an organization. The Foundation for Individual Rights in Education, FIRE, is extraordinarily good at defending student free speech rights. I have some involvement with FIRE as well, and if students have concerns about whether speech rights are being adequately defended on their campus or their rights are being violated, FIRE’s extremely good at doing those things.

We’ve decided to really try to limit ourselves to focusing on professorial speech rather than student speech. Sometimes those things go hand in hand; the student speech and faculty speech are protected by the same principles and the same rules, and they share a mutual interest. But sometimes they don’t. Sometimes it’s the students who are precisely trying to suppress faculty speech, and sometimes you’ve got to stand up to the students too.

Fostering a Free-Speech Environment

KLUTSEY: Right. Now, many of our listeners work at universities. What can they do to foster environments where individuals are comfortable exploring diverse viewpoints on all kinds of subjects?

WHITTINGTON: Yes, I think there are lots of things that can be done. I do think joining a formal organization like the Academic Freedom Alliance, like the American Association of University Professors, for example, who’s traditionally been very involved in these fights. Although I think their energies are dispersed a bit these days, because they’re also worried about a variety of other concerns that affect faculty as well as academic freedom issues. I think joining these organizations, helping these organizations is actually helpful as well.

I do think that faculty half-pay attention to what the rules and policies are on their own campus. It’s easy to leave that to administrators and just assume that it’s fine. And oftentimes I think you can wake up one day and realize that your rules are actually not written very well, that they’re more restrictive of speech than they ought to be. They’re not as protective as they should be.

Encouraging your faculty to adopt something like the Chicago statement on free expression, I think, is quite valuable and important. It sends a good signal, but also can help clarify what the rules and commitments are for a particular university. Getting those kinds of things on the books can be helpful on establishing the rules side, but they’re also helpful in trying to shape what the public debate is and shape that culture to some degree.

And being vocal and standing up for these things. I think faculty—we have lots of other things we’re doing; we’re involved in our own particular scholarly interest. We’re very focused on these particular substantive ideas and debates that concern us, but I think sometimes we do have to step back and think about the larger environment, and think about these kinds of academic freedom and free speech concerns as well. Sometimes we have to be willing to speak up about them.

I think, again, one thing that can happen is not only do people get isolated when controversies around them, particularly as individuals. But it’s also easy to step onto a university campus, for example, if you’re an incoming freshman just starting up on university campus, and the loudest voices in the room are often those in favor of restricting speech in various ways, it’s easy to assume that that actually represents majority opinion, that everybody here actually does think speech ought to be suppressed, that these are the only ideas that can be acceptably voiced.

Sometimes all it takes is for people to be willing to stand up and speak out and say, “No, no, actually we have some disagreements here. We have other ideas; we actually think they’re important. We actually think free speech ought to be protected,” to make people realize they’re actually not alone in this.

If you look at surveys of students, for example, it turns out that for the most part, most students and faculty are actually quite supportive of free speech, in general. Loud voices tend to dominate the debate and, as a consequence, shape the culture of a local university. Being willing to stand up and take a little heat by saying, “Look, sometimes you actually have to care about free speech. These are important principles.”

Doing that on your own campus, doing it more generally, I think can actually be very useful in helping to reset what the culture looks like on your own university campus. And trying to make it a little easier for people who do have dissenting views, unorthodox views on some particular topic, make it a little easier for them to feel comfortable being able to state those views, then having everybody say, “It turns out I disagree with that, but that’s okay. It’s all right for us to disagree, and we can still go out afterwards for drinks.”

The Future of Free Speech

KLUTSEY: Now, there’s a question I tend to ask most of our guests. It’s about optimism. Are you optimistic about the future of free speech across college campuses and actually across the United States?

WHITTINGTON: I think you have to be optimistic, otherwise you wouldn’t be doing this. I think in part as an educator, as a scholar, optimism is baked in to some degree. The thing that moves you forward and want to try to educate students, to try to write new articles, try to make new arguments is the hope that you might persuade people, the hope that things can get better, the hope that you can actually genuinely advance the argument.

You have to be hopeful that if you write a book, if you go out and give talks, that you actually will help move the needle a little bit and help make things a little better. That’s not to say you want to be too naive about what the situation looks like. I think, actually, we are in a dangerous situation. I think things could get a lot worse if we’re not careful, but I don’t think all is lost.

I do take comfort from the fact that not only is it possible to persuade people. I’ve seen it in my own work. I do go out and I have been going out for a while now and giving talks on these free speech issues. As you expect, some people are dug in and disagree, and they’re not going to be persuaded. There’s an awful lot of people who really want to hear the debate and want to hear the arguments and want to think these issues through and are persuadable and can be persuaded, and that’s very encouraging for the long term.

Likewise, I think, as I said, these kinds of surveys do suggest that most students, most faculty still are committed to these core ideas and values and, of course, why not? Because if you ask people, “Should your own speech be suppressed?” the answer is always going to be, “No.” They understand at heart that it’s good not to suppress speech. The hard thing is not convincing them should we not suppress your speech, but also, should we not suppress the other guy’s speech as well. But that gives you a starting point, right?

It turns out there’s a lot of support for that idea, and then we just have to build on it. But that does require speaking out. It does sometimes require organizing, requires paying attention to it. I had a lot of other things on my scholarly agenda besides doing free speech work. Ultimately, this became important enough that I thought it was important to spend time doing this, set some other things aside in order to give more attention to this. I wouldn’t be doing that if this was a fight that couldn’t be won. If I thought it was already lost, there’d be no point. I think this is a fight that could be won, but we actually have to engage in the fight.

KLUTSEY: Finally, for those who are reading your book, following what you’ve been saying and talking about, and also tracking what’s happening at AFA, do you have a call to action for them?

WHITTINGTON: Yes, like I said, I think it is true. Do you just want to speak locally about these issues? Do you want to come to people’s defense when these things are being challenged? It’s easy to keep your head down when somebody else finds themselves in the fire of controversy. It’s easy to avoid them and try to stay out of it. Sometimes you’ve got to actually stand up for it and be willing to stick up for people’s ability to say things even when you disagree with the particulars of what people have said.

Speaking up, actually, is really critical in these moments. And that doesn’t necessarily demand a lot from people all the time. You don’t have to constantly do it. You can choose your battles, but your willingness is actually—you say, “This is what we do here on universities. We take ideas seriously, we have arguments and debates, we grapple with things that are difficult and controversial, we speak our minds, we hear other people out, and then we make judgments about whether those ideas are good ideas or bad ideas. That’s what we’re trying to do here and what we’re trying to accomplish.”

Explaining that to people is actually helpful and can go a long way in helping the culture on university campuses and making these situations better and providing the kind of foundation that you need for when these particular controversies arise. People already understand what the basic principles are, and it becomes a little easier to sell them and to say, “Okay, now we have to apply those principles in this particular difficult circumstance,” rather than, it’s suddenly now you’re in the midst of some particular controversy, and now you’re trying to suggest to them, “Oh yeah, there’s this thing called free speech we ought to care about.”

You hope that you’ve already got them on board with the idea of free speech before you’ve come to this particular controversy and have to try to disentangle the broader principle from the particulars of whatever it is people are upset about at the moment.

KLUTSEY: Well, Professor Whittington, it’s been a real pleasure talking to you. Thank you very much for joining us on this podcast. We really appreciate it.

WHITTINGTON: I appreciate it. Thank you very much.

 

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