Free Speech on Campus and the Spirit of Louis Brandeis

UNLEARN cover

I was pleased earlier this year when Ken Marcus, President of the Brandeis Center, asked me to guest blog for the Brandeis Center regarding my recent book, Unlearning Liberty: Campus Censorship and the End of American Debate, and my work as President of the Foundation for Individual Rights in Education (FIRE).

The First Amendment and free speech has been a lifelong passion for me and the reason why I attended law school in the first place. During my time at Stanford Law School, I took every class I could on First Amendment law and completed six additional credits on the origins of the legal concept of “prior restraint” in Tudor England. In my experience, Oliver Wendell Holmes gets a lot of attention, but I believe that Louis Brandeis was the first truly great hero of freedom of speech in Supreme Court history.

As I begin blogging here at the Brandeis Center this week, I want to explain the premise of my book, Unlearning Liberty. In the book (which is in many ways a follow-up to Alan Charles Kors and Harvey Silverglate’s 1998 book on campus censorship The Shadow University: The Betrayal of Liberty on America’s Campuses), I chronicle many of the crazy examples of censorship on college campuses that I have seen over my 11 years fighting for free speech in higher education. Some of the examples, of course, arise from what is loosely known as “political correctness” on campus.

These examples include wildly unconstitutional campus speech codes (according to FIRE’s latest study, 62% of over 400 top colleges maintain such speech codes) and “classic” FIRE cases, including a program at the University of Delaware that truly deserves to be called Orwellian, a student who was found guilty of racial harassment simply for publicly reading a book, and a student who had the book thrown at him for making a joke about the “freshman 15.”

Other cases that highlight the growing bureaucratization of campuses represent outright abuses of power by campus administrators. One example indicative of this trend is the ongoing saga of Hayden Barnes, who was kicked out of Valdosta State University for creating a collage criticizing a parking garage. There are also numerous incidents in which students’ right to free speech was limited to tiny, out-of-the-way, unconstitutional “free speech zones.”

A particularly humorous case (though, not for the professor involved at the time) occurred in 2011 when a professor found himself in hot water for making a poster quoting the short-lived, yet beloved sci-fi classic, Firefly.

Many of the incidents described, however, will not be well known, even to those who faithfully follow FIRE’s work. Whereas others, like the attempt by Muslim students to shut down a speech by Israeli Ambassador Michael Oren at the University of California, Irvine, are presented in the context of a disturbing trend of students believing that not only do they have a right not to be offended, but that they also have a right to shut down speech that they dislike or disagree with.

But the larger goal of Unlearning Liberty is to show why these incidents matter to people far outside the campus gates.

The first and most pernicious problem (and the problem for which the book is named), is that these illiberal examples teach students all the wrong lessons about what it means to live in a free and pluralistic society. Some students are becoming troublingly comfortable with being told what they can say as well as where and when they can say it. Students are coming to believe that free speech ends where the campus begins, or when campus administrators and those who shout the loudest draw offense. Still worse, some students, like those at UC Irvine who disrupted Oren’s speech, are coming to believe that censorship is a heroic virtue—something that noble, enlightened people engage in.

These attitudes pose a serious long-term threat to our democracy.

On the subtler side, thirty years of politically correct censorship on campus is promoting bad intellectual habits by encouraging students to talk only to those with whom they already agree, join ideological groups that only reinforce their existing beliefs, and avoid engaging with professors for fear of lower grades (or even, potentially, punishment). This process supercharges group polarization and allows for the cheap dodges to debate and discussion that permeate our larger society. If higher education was really effective at making us deeper, more nuanced, more sophisticated thinkers and arguers, then we should be living in a golden age of American discourse. But I don’t think anyone would suggest that is the case.

This week, I plan to do two additional blogs.

The next blog post will be about the censorship of a Jewish student at Pennsylvania State University who attempted to criticize Islamic extremism in his art. I will address how even fact-based criticism of Islamic extremism can land a student or publication in trouble on the modern American campus.

My final blog post will examine the threat to religious liberty on campus in the wake of the muddled Supreme Court decision in CLS v. Martinez. While the rationale of the case has been primarily used against evangelical Christian groups, I am confident that readers will immediately understand how a policy that prevents religious or expressive groups from excluding members who are utterly hostile to the group’s message poses a threat to Jewish organizations, as well.

In all these, I plan to step out of the way of some of the stories by featuring FIRE videos that talk directly to students who have been pushed around by campus censors.

This first video is a quick and entertaining summary of some of the major points I make in Unlearning Liberty: