Following my post entitled “Floyd Abrams on ‘the greatest threats to free speech in this country,'” a number of readers asked where they might find the entire text of Mr. Abrams’ March 16, 2015 remarks at Temple University, Beasley School of Law (the Arlin & Neysa Adams Lecture).
I contacted Mr. Abrams and he kindly agreed to let me post his lecture, the text of which is set out below. I have added hyperlinks to the text. — RKLC
A few weeks ago I read a blog post on Concurring Opinions. The post (entitled “First Amendment News”) is prepared weekly by Professor Ronald Collins and deals, in a particularly knowledgeable and even-handed manner, with the First Amendment in the courts, in legislatures, in academia, and elsewhere. In it, he summarized and attached a recent “workplan” of the American Civil Liberties Union. In eight pages, it listed nine priorities for the ACLU for 2015, ranging from reproductive rights (listed first) to mass incarcerations. Freedom of speech was not among the listed priorities and was referred to in only the most passing manner, an extraordinary omission for an organization formed for the prime purpose of defending that right and probably more associated with doing so than any other entity.
The ACLU later responded, pointing to a number of activities on its part aimed at protecting the First Amendment. Before it did so, however, another scholar — Professor Howard Wasserman — had responded to the blog with a provocative thesis. “One possible (if not entirely accurate) answer,” Professor Wasserman wrote of the ACLU’s omission, was this: “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.”
I have little doubt that Professor Wasserman didn’t mean to be taken too literally and I won’t seek to do so. But his observation did lead me to try to identify for myself what the greatest free speech civil liberties battles are today. Fortunately, we have no incidents such as in France of terrorists murdering journalists because they are offended by their offerings. Or, as in Russia, of journalists critical of the government being killed with disturbing and suspicious regularity. We have no examples of journalists being jailed, as in Turkey, because their writings outrage the regime in power. Or of direct governmental efforts to censor speech, as in India, by barring the televising of a documentary dealing with rape. Or of the Internet being censored, as in China, with the assistance of over two million people employed to monitor online conduct. Or of broadcasters being censored when they criticize the government, as in Venezuela. I could go on all too easily.
So what is the greatest threat to free speech in this country? And where is it? There are obviously major issues relating to the potential impact of pervasive government surveillance on First Amendment freedoms. And those pesky issues relating to confidential sources of journalists — and as to who is a journalist — don’t seem to go away. And, of course, there are other issues.
Yet if I had to choose a topic and a locale, I think I would first look . . . right here. On this battleground. Oh, I don’t really mean here at Temple in particular. I don’t think I do, anyway.
The On-Campus Crisis
But I do mean in colleges and universities, on campuses and in classrooms, by students and faculty and administrations. Around the country. This does not happen, as it might have many years ago when I was in college, simply because an all-powerful administration wanted complete control over all on-campus speech. (I well recall when, a few years ago, I entered Cornell that I was required to sign some document agreeing that I could be suspended for saying, doing or not doing just about anything of which the university disapproved, including not carrying the ID card they gave me saying just that.) Nor is it the result of pressure from powerful and wealthy alumni, a serious problem of the past.
If you’d like to see that sort of danger portrayed artistically, have a look at an old movie (even for me) called “The Male Animal” (1942), with Henry Fonda as a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted – very probably unjustly – of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views. And there have been a wide range of significant issues through the years.
Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.
What, after all, other than shame is deserved by Brandeis for offering and then withdrawing an honorary degree to Ayaan Hirsi Alia for her criticism of Islam; by the hostile atmosphere at Smith College that resulted in Christine Lagarde’s withdrawal, the first woman to head the IMF, to speak to the graduating class; in Rutgers, for so embarrassing former Secretary of State Condoleezza Rice that she declined to appear. And for effectively withdrawing, George Will’s invitation to speak at Scripps College in California after controversy about the invitation.
And would you believe, as Chief Judge Loretta Preska of the United States District Court for the Southern District of New York pointed out in a recent address, that when the College Republicans at Fordham University invited Ann Coulter to speak on campus, “the uproar caused the group unceremoniously to rescind the invitation.”
One should really not have to say that of all places, campuses should be most protective of the broadest level of freedom of speech. Or that speakers should be permitted to have their say, instead of being booed off stage as former New York City Police Commissioner Ray Kelly was at Brown. Or shouted down, as Israeli officials have been, in threatening circumstances, and not permitted to speak on campuses. Or that it is disgraceful, as the findings of the Foundation for Individual Rights in Education (“FIRE”) reveal, that such topics as abortion, gay rights, and the “war on terror,” were “the cause of many disinvitation incidents,” that the amount of disinvitation incidents “has risen dramatically” over the past 15 years; and that Harvard – you’ve heard of Harvard, I’m sure – has the most disinvitation incidents. I don’t often quote William F. Buckley, Jr., but on hearing that, it’s hard not to recall his observation that “I’d rather be governed by the first 2000 people in the Boston telephone directory than the entire faculty at Harvard.”
What can one say about this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1858, “have every train of thought brought before us while we are young, and may as well at once prepare for it.”
The on-campus crisis is not limited to disinviting speakers. It includes stifling speech itself. Wendy Kaminer, writing a few weeks ago in the Washington Post, described a recent panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive) figure by name — perhaps you can recall it — she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence.”
I don’t want to suggest that this is a problem limited to our country. Just as the First Amendment , which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer, in an article published in England just a month or so ago, reported on one English university in which (like here) the speech of a deputy ambassador of Israel had to be abandoned because of protests so noisy and threats of violence so credible that the safety of the speaker could not be guaranteed; of another that banned supposedly “racist” sombreros and native American dress; and of a third—one that you might have heard of called Oxford — where a debate on abortion was cancelled by College Censors (that’s their official name, by the way) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”
This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.
I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.
I do not mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Consider, as you may be already, the ugly racist chants of students at the University of Oklahoma. It is difficult to condemn, on any sort of moral basis, the decision of David Boren, the President of that University, to expel the students. In universities, as elsewhere, racism is not a blemish; it is a scar on everyone — those vilified, those uttering the ugly slogans of hate, and everyone else. And if I were the president of a private university, that is not subject to the First Amendment, my initial instinct (but not ultimate decision) might well have been to expel the students. But because state universities are treated as instrumentalities of the state, the First Amendment applies to them, and the expulsion of the students was in all likelihood unconstitutional. That, as Professor Geoffrey Stone has summarized, is because “the central meaning of the First Amendment is that we do not trust the Government to decide for us what we should be allowed to hear, read, see or know.”
The Ideological Left’s Drift Away from the First Amendment Read More