Congressional Hearings
EXPLORING FREE SPEECH ON COLLEGE CAMPUSES
Congressional Hearings
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| AUTHORITYID | CHAMBER | TYPE | COMMITTEENAME |
|---|---|---|---|
| sshr00 | S | S | Committee on Health, Education, Labor, and Pensions |
[Senate Hearing 115-660]
[From the U.S. Government Publishing Office]
S. Hrg. 115-660
EXPLORING FREE SPEECH ON COLLEGE
CAMPUSES
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING FREE SPEECH ON COLLEGE CAMPUSES
__________
OCTOBER 26, 2017
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington, Ranking Member
RICHARD BURR, North Carolina BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky AL FRANKEN, Minnesota
SUSAN M. COLLINS, Maine MICHAEL F. BENNET, Colorado
BILL CASSIDY, M.D., Louisiana SHELDON WHITEHOUSE, Rhode Island
TODD YOUNG, Indiana TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts
LISA MURKOWSKI, Alaska TIM KAINE, Virginia
TIM SCOTT, South Carolina MARGARET WOOD HASSAN,
New Hampshire
David P. Cleary, Republican Staff Director
Lindsey Ward Seidman, Republican Deputy Staff Director
Evan Schatz, Democrat Staff Director
John Righter, Democrat Deputy Staff Director
C O N T E N T S
----------
STATEMENTS
THURSDAY, OCTOBER 26, 2017
Page
Committee Members
Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 4
Young, Hon. Todd, a U.S. Senator from the State of Indiana....... 43
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado....................................................... 45
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 47
Hassan, Hon. Margaret Wood, a U.S. Senator from the State of New
Hampshire...................................................... 48
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 51
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia....... 53
Witnesses
Statement of Dr. Robert Zimmer, President, The University of
Chicago, IL.................................................... 7
Prepared statement........................................... 9
Statement of Nadine Strossen, John Marshall Harlan II, Professor
of Law, New York Law School, New York, NY...................... 15
Prepared statement........................................... 17
Statement of J. Richard Cohen, President, Southern Poverty Law
Center, Birmingham, AL......................................... 26
Prepared statement........................................... 27
Statement of Dr. Allison Stanger, `60 Russell J. Leng, Professor
of International Politics and Economics, Middlebury College,
Middlebury, VT................................................. 34
Prepared statement........................................... 35
EXPLORING FREE SPEECH ON COLLEGE CAMPUSES
----------
Thursday, October 26, 2017
U.S. Senate,
Committee on Health, Education, Labor,
and Pensions,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Lamar
Alexander, Chairman of the Committee, presiding.
Present: Senators Alexander [presiding], Murray, Collins,
Isakson, Young, Casey, Bennet, Hassan, Warren, and Kaine.
Opening Statement of Senator Alexander
The Chairman. Good morning. The Senate Committee on Health,
Education, Labor, and Pensions will come to order.
Today, we're holding a hearing on Exploring Free Speech on
College Campuses. Senator Murray and I will each have an
opening statement, and then we'll introduce the witnesses.
We're looking forward to the witnesses. This is an exceptional
panel. We look forward to learning from you, and we thank you
for coming. After your testimony, we'll each have 5 minutes of
questions.
Before we get into the hearing, I want to make a comment
about the recommendation that Senator Murray and I made to the
Senate, along with 22 other Senators, equally divided
Republicans and Democrats, for a short-term bipartisan
agreement to reduce premiums and avoid chaos in the individual
insurance market during 2018 and 2019.
I'm very encouraged by what has happened since we
introduced that a week ago, especially by the report of the
Congressional Budget Office yesterday, which said, in effect,
that as we believed, the Alexander-Murray proposal, which would
continue cost-sharing payments for 2 years, 2018 and 2019,
would provide benefits to taxpayers and consumers and not to
insurance companies. Senator Murray and I spent a lot of time
trying to think of the most effective language to make sure
that would be true in our language.
President Trump has said repeatedly he doesn't want to bail
out insurance companies. We're convinced our language does not,
and the Congressional Budget Office agrees. It says that, on
net, CBO and the Joint Taxation Committee estimate that
implementing our legislation would reduce the debt by $3.8
billion over 2018 to 2027, and they expected insurers in almost
all areas of the country would be required to issue some form
of rebate to individuals and the Federal Government.
In plain English, that means less taxpayer money for
Affordable Care Act subsidies if we pass our legislation. CBO
had said earlier that it will be a lot more taxpayer money for
Obamacare subsidies if we don't pass it. In fact, they estimate
$194 billion over 10 years in increased debt as a result of the
higher subsidies.
I think this is why more Republicans and conservatives over
the last week have indicated their support for continuing cost
sharing. The Chairman of the Tax Committee, Senator Hatch, and
Kevin Brady both said that. Now, they added other provisions to
their cost-sharing payments that are different than what
Senator Murray and I agreed to, and if they can persuade
Senator Murray and Democratic Senators to do that, so much the
better. But what that suggests to me is that there's growing
support that we need to do something.
In addition to that, I've pointed out that almost every
House Republican voted for continuing cost-sharing payments for
2 years when they voted earlier this year to repeal and replace
Obamacare.
I thank Senator Murray for her leadership in this area. As
usual, when she sets about to get a result, we usually get a
result, and I think we will by the end of the year, something
close to what we proposed. I thank the 22 other Senators,
Democratic and Republican, who joined with us, and I ask
consent to put into the record at this point the Congressional
Budget Office report since this Committee spent so much time on
this subject, devoting four full hearings to it and inviting
Senators not on the Committee to four other meetings.
The Chairman. Senator Murray, would you like to say
something on that subject before we move ahead with the
hearing?
Senator Murray. No. I very much appreciate your remarks,
and I just want all of our colleagues to know that we believe
this is the right kind of proposal that deals with the short-
term economic situation of so many Americans. I'm very excited
that we are getting more and more support every day. The CBO
report, I think, is especially important for us as we move
forward, and we will keep working to get it done.
The Chairman. Thank you, Senator Murray.
Today, we are talking about free speech on college
campuses, the right to speak one's mind without being silenced.
As Justice Anthony Kennedy recently wrote, quote, ``A law that
can be directed against speech found offensive to some portion
of the public can be turned against minority and dissenting
views to the detriment of all. The First Amendment to the
Constitution does not entrust that power to the government's
benevolence. Instead, our reliance must be on the substantial
safeguards of free and open discussion in a democratic
society.''
There is a long history of shouting down speakers with whom
students and other members of the university community disagree
or take offense on college campuses. Back in the 1930s, a
student club at the University of Chicago--the current
president of the University of Chicago is here today--invited
William Foster, the Communist Party's Presidential candidate,
to speak. This led to protests and criticism. The university
president defended the decision, saying that students should
have the freedom to discuss any problem that presents itself,
and that the cure lies through open discussion rather than
through inhibition and taboo.
When I was a student in the 1960s at Vanderbilt University,
the John Birch Society wanted D. F. Fleming, my political
science professor, fired. They said he was a communist because
he thought World War I was a mistake. Vanderbilt defended him
and he stayed. I also remember when the poet, Alan Ginsberg,
spoke on campus, horrifying parents and some students, but he
was allowed to speak.
In his book, North Toward Home, Willie Morris wrote how,
when he was a student at the University of Texas in the 1960s,
the American Association of University Professors rose up
because the liberal professors were being squelched. In the mid
60's, Senator Ted Kennedy, later a Chairman of this Committee
and a liberal leader in the Democratic Party, was shouted down
at the University of Wisconsin and not allowed to speak because
he was considered by the hecklers as not liberal enough.
The University of California at Berkeley became famous as
the home of the campus free speech movement in the 1960's and
was known as a campus that protected all sorts of left wing
causes.
Now, the pendulum has swung in the opposite direction.
It is usually voices of conservative professors and
speakers that are being squelched. In 2014, after Rutgers
students protested and held a sit-in in the president's office,
former National Secretary Advisor and Secretary of State
Condoleezza Rice withdrew from speaking at commencement.
Earlier this year, out of fears of protests, Berkeley
sought to reschedule Ann Coulter's lecture to a time when fewer
students would be on campus. One of our witnesses today,
Allison Stanger, was assaulted by students at Middlebury
College as she was leaving a disrupted discussion she had
moderated by conservative author Charles Murray.
Fortunately, some liberals with long memories are reminding
the left when they were the ones who were being shut down. Folk
musician Joan Baez, who participated in the free speech
movement at Berkeley, said, ``Let the Ann Coulters of the world
have their say.'' University leaders such as Dr. Zimmer, who is
here, and Berkeley Chancellor Carol Christ, have both taken
action to reaffirm their commitment to free speech.
Another is Nadine Strossen, who served as president of the
American Civil Liberties Union and is a witness here today.
Former Vice President Joe Biden said last week, quote,
``Liberals have short memories. When I was coming up through
college and graduate school, free speech was the big issue, but
it was the opposite. It was liberals who were shouted down when
they spoke.''
But shouting down speakers isn't the only issue. There is
the question of political one-sidedness, that there is a
pervasive point of view on many college campuses. Statistics
are hard to come by, but most everyone knows it is true, even
at our most prestigious institutions.
A 2014 survey by the University of California Los Angeles
on the ideological leanings of college faculty members found
that the number of liberal professors compared with
conservative professors was about 6 to 1, and in New England,
the ratio was to 28 to 1. There are not many registered
Republicans in the town of Cambridge, either.
As of February this year, 3.7 percent of voters were
registered as Republicans.
When I was on the faculty at the Kennedy School of
Government at Harvard, where I was for 2 years before I came
here, we laughed that I was part of an affirmative action
program for Republicans and conservatives. I have to give
credit to Dean Joseph Nye, who actually made a significant
effort to bring more conservatives and more Republicans to
campus. While I was there, I would tell conservative students
that they got the best education. Liberal students could be
guilty of lazy thinking because they agreed with their
professors, while conservative students learned to be on their
toes.
Some campuses and some departments have a conservative
bent, but not many. This kind of one-sidedness can result in
students feeling uncomfortable when confronted with new ideas.
Then there is the question of deliberately inflammatory
speakers and the chaos that results when they show up. We saw
that in Charlottesville. We saw it last week at the University
of Florida--$600,000 spent on security, 1,000 law enforcement
officials, the Governor declaring a state of emergency.
This is a problem in a country that prizes freedom, and a
familiar one. If you're a university president, what do you do
about this? How do university presidents respond to the speech
and to the reaction to the speech? A recent survey by Brookings
Institution found that nearly 20 percent of students believe it
is acceptable to use physical force to silence a speaker who
makes offensive and hurtful statements. What about a speaker
who sets out just to be controversial?
If you create an environment that results in tens or
hundreds of thousands of dollars in security costs, a speaker
who can't speak, and an audience who can't listen, that's not a
very good result.
We have a distinguished panel. We should listen to them and
remember Senator Howard Baker's admonition, that the other
fellow may be right. Universities, especially, should be the
place where people of different views may speak, audiences can
listen, and many contrasting viewpoints are encouraged. There
should be some sensible ways to allow that while still
protecting freedoms guaranteed by the First Amendment.
Senator Murray.
Statement of Senator Murray
Senator Murray. Well, thank you very much, Chairman
Alexander, and I want to thank all of our witnesses who are
here today, and thank you for your commitment to protecting
free speech on college campuses and elsewhere.
You know, everyone in this room can agree that free speech
is a cornerstone of our democracy. It is what allows us to
disagree and debate political ideas without fear of
retribution. It allows us to speak out, and if our government
is acting in a dishonest or unethical or unlawful manner, it
allows open and honest discussions of ideas new and old. It's
allowed civil rights leaders, including Dr. Martin Luther King,
Jr. and Delores Huerta, to stand up and peacefully fight for
what is right.
There is no real debate about whether or not there should
be free speech on college campuses or anywhere else. I think
that's something we can all agree on, despite some people
trying to create strawmen by saying that one side or another
doesn't.
But here's the issue that I think is worth discussing
today. How can we protect this constitutional right while also
making sure our colleges and universities are places where
everyone can feel safe so they can learn and respectfully
debate ideas? As part of that conversation, we need to discuss
how elected leaders and community members and college and
university administrators can best exercise their First
Amendment right to do everything in their power to push back
against those who are driving an agenda of extremism or racism
or bigotry or xenophobia and misogyny, and we must also speak
out against groups and organizations that are looking to use
their right to free speech to divide us, to attack the most
vulnerable among us, and to feed on people's fear in the
service of hate.
This is a necessary and vital discussion for this Committee
and all of us to have. While I believe there are a whole lot of
people on campuses across the country who are doing great work
on this front, recent events have made it clear we're not there
yet. Here's where I want to start with what should be an
obvious statement. I think we can all agree there is no place
for violence on our college campuses. But, unfortunately, in
the last 10 months, we've seen more and more of this across the
country, and when you look at who we have in the White House
right now, the rhetoric that's being used, some of the people
that have been hired, and some of the groups he has encouraged,
it should come as no surprise when we see an apparent
resurgence of hate and bigotry and xenophobia and misogyny on
our campuses.
What we have heard coming out of this White House has been
shocking at times. But what has been even more disturbing is
how so many others, even those who opposed him previously,
allowed that rhetoric and those attacks to be normalized. This
normalization of attacks based on how a person worships or who
they are or where they come from seems to have somehow
emboldened extremist hate groups to now come out of the
shadows, and with that, in some parts of the country, we've
seen reports of a rise in hate crimes and violence, especially
in our college campuses.
For years, there's been a concerted effort to combat hate
groups in the courts and in the hearts and minds of American
people. As a result, those radical organizations had been
steadily pushed to the margins of our society. But in 2015,
they found a voice they could rally behind, and it's no secret
that leadership in this country has made some disparaging
public comments against Mexican Americans or women or Muslims,
and unlike before, when those individuals knew they would be
shunned by their friends or neighbors or communities for that,
this rhetoric has emboldened extreme hate groups to come back
out of the shadows.
There are reports of a disturbing rise of racist vandalism
and harassment of religious minorities, an uptick in the
distribution of hateful flyers on college campuses, and
recruitment of students on college campuses, including here in
Washington, DC, and in my home State of Washington. Just
yesterday, I met with a very bright young student named Taylor
from American University, and she's here today, and I'm so
proud of you for what you're doing. Earlier this year, Taylor
was actually elected AU's first African American female student
body president, and the same day, racist messages were found
hanging across that campus, right here in Washington, DC.
While the FBI is investigating those as hate crimes, Taylor
is speaking out now to highlight the toll it is taking on the
students being targeted by hate speech. Like a true leader,
Taylor took that experience to begin a larger dialog about
bigotry, working with the university's administration, to make
the school a more welcoming and safe place for all students.
That's just one incident. There are so many more. Earlier
this summer, as we heard, hundreds of white supremacists
organized from around the country to travel to the University
of Virginia's campus in Charlottesville. Those individuals
marched through the city, shouting Nazi slogans and racist
chants, and when a group of counter protestors, many of whom
were residents of Charlottesville, and students and staff and
faculty at the university stood up and said they would not
tolerate that kind of hate in their community, they were
attacked.
During the clash in Charlottesville, unconsciously, as we
know, a young woman described as, quote, ``a passionate
advocate for the disenfranchised'' was killed, and more than 30
were injured. Now, I want to be clear both sides in
Charlottesville were not to blame, and many people on both
sides of the aisle here stood up and spoke out to condemn that
act of domestic terrorism and to push back against President
Trump's response.
It is very clear there needs to be a discussion about what
is happening today on college campuses, that we have not yet
solved this problem, and I'm glad we're having this here today.
As I said at the beginning, no one is debating the right to
free speech. But colleges and universities also have to ensure
that campuses are safe and welcoming to all students. That's
why this conversation has to include a discussion about the
responsibility of community leaders and college administrators
to use their own voices to speak out against hate and refuse to
normalize racist or otherwise bigoted viewpoints while also
respecting the free speech rights of those they disagree with.
This conversation has to include a discussion about what
colleges can be doing to keep students safe and how to also
respect the rights of students who want to speak out against
hate and extremism.
College campuses have long been places to discuss and
debate ideas, where students learn to think outside the box and
get out of their comfort zones. That is one of the greatest
strengths of the American higher education system. I'm sure all
of our colleagues here today agree that colleges can continue
to challenge students' views and perspectives while also doing
everything we can to put the safety of students and staff and
faculty first and not allow people to incite or invoke violence
under the guise of free speech.
I look forward to hearing from all of our witnesses today
on how colleges and universities can do more to both speak out
against hate speech on their campuses and to protect free
speech. By beginning this conversation, we can start to once
again push hate groups back into the margins of society, combat
the resurgence of extreme ideology and the violence and hate
speech that has been enabled.
Mr. Chairman, I appreciate this opportunity today, and I do
have several statements I would like to enter into the record.
The Chairman. They will be.
Thank you, Senator Murray.
Now, we'll welcome our witnesses. There are four of them.
We'd like to ask each of you to summarize your remarks in 5
minutes, which will leave more time for conversation back and
forth between Senators and you.
Our first is Dr. Robert Zimmer, President of the University
of Chicago, in that role since 2006, formerly Provost at Brown
University, and before that, 25 years at Chicago. He's an
author of mathematics books and more than 80 articles.
Next, Nadine Strossen, John Marshall Harlan II Professor of
Law at New York Law School. She has written, taught, and
advocated extensively in areas of constitutional law and civil
liberties, earning recognition in The National Law Journal as
one of America's most 100 influential lawyers from 1991 to
2008. She served as President of the American Civil Liberties
Union and was the first woman to hold that position.
Our next witness is Dr. Richard Cohen, President of the
Southern Poverty Law Center. He's led the Center since 2003. He
joined the organization in 1986 as its Legal Director. He has
litigated a variety of civil rights cases. He testified earlier
in front of the Senate Committee on Judiciary.
Our final witness is Dr. Allison Stanger, the Russell Leng
Professor of International Politics and Economics at Middlebury
College. She is currently on sabbatical from Middlebury serving
as Cybersecurity Fellow at New America. Her work focuses on
American Foreign Policy. She's a member of the Council on
Foreign Relations. She was a consultant to the Secretary of
State's Policy Planning Staff from 2009 to 2011.
We welcome the witnesses, and, Dr. Zimmer, let's begin with
you.
STATEMENT OF ROBERT ZIMMER
Dr. Zimmer. Thank you very much to Chairman Alexander and
Ranking Member Murray for inviting me here today.
I'm going to briefly address three topics related to free
expression on university campuses. First, why is it important?
Second, what are the Chicago Principles? Finally, what needs to
be done to support free expression on campuses?
Why is it important? For all institutions of higher
education, whether public or private, free expression and open
discourse and their companions, free listening and open
questioning, are at the very core of fulfilling their missions
of education, research, and impact.
Every student at a university deserves an education that
deeply enriches their capabilities. This necessitates acquiring
knowledge, but, more importantly, acquiring general skills and
habits of mind that are going to enhance their approach to
future challenges. They must learn to recognize and evaluate
evidence of various sorts, challenge their own and others'
assumptions, effectively argue their position, grasp both power
and limitations in arguments, confront complexity and
uncertainty, synthesize different perspectives, understand that
context and history matter, think through unintended
consequences, and take account of change, tradeoffs, and
uncertainties.
If the education that we provide does not give students the
opportunity to acquire these skills and abilities, they will be
under prepared to make informed decisions in the complex and
uncertain world they will confront upon entering the workplace.
Intrinsic to students attaining these skills is an environment
of ongoing intellectual challenge of which free expression and
open discourse is an essential part.
Likewise, for research at universities to be of the highest
quality, unfettered investigation and a willingness to
challenge assumptions and the free expression that goes with it
is essential. To limit free expression is quite simply to limit
the quality of education and the quality of research.
This has important implications for our country.
Nationwide, innovation is driven by faculty research and an
inventive alumni body forged by a level of challenge that
demands an environment of free expression. To be challenged is
also why so many of the leading ambitious young people from
around the world have come to the United States, and such is
the ultimate importance and stake for our country around these
issues. Will our higher education system continue to be the
best in the world? Will our research continue to be the most
impactful? Will we continue to attract highly talented people?
Or will we lose focus on the mission of universities and allow
other concerns to erode the efficacy of our institutions?
What are the Chicago Principles? Over the course of its
history, as Senator Alexander has already alluded to, the
University of Chicago has long stood for and embraced the
values of free expression and open discourse. In July 2014, as
campuses nationwide saw prominent speakers being dis-invited,
disruption and even violence attached to various speaking
events, and support for free expression in universities
eroding, I charged the faculty committee with providing a
concrete statement that encapsulated our longstanding values.
The resulting document is now known as the Chicago
Principles, which can be summarized briefly as follows.
First, an unwavering commitment to free expression and open
discourse, allowing views to be expressed that may conform to
no consensus and may be strongly opposed by any segment or even
all of the university community. Second, the university
recognizes, indeed, embraces non-disruptive protests as a
legitimate means of free expression and supports the rights of
all members of the university community to engage in such
protests. Third, disruptive protests or other means of limiting
the rights of others to engage in free expression, listening,
and open discourse is not acceptable and is a violation of the
university's commitment to free expression.
What needs to be done? The situation currently is very
fluid. There have been a number of university and faculty
leaders who have embraced the Chicago Principles or otherwise
made powerful statements in support of free expression. Most,
however, have not. Meanwhile, there continue to be
inappropriate disruptions on campuses, while at the same time,
there is much more open discussion of the topic than was taking
place even 18 months ago.
To repair the situation, it will be up to faculty,
university leaders, and trustees, who together help define
institutional culture over time, to forcefully embrace free
expression through clarity of their commitment to excellent
education and robust research. Otherwise, we will find
ourselves on a path that is antithetical to fulfilling our
highest aspirations.
For the sake of our students and their future success, our
faculty in their capacity to develop original and impactful
research, and our country remaining a magnet for the most
talented from around the world, we must embrace free
expression, open discourse, and challenging questioning and
resist its suppression that we are seeing on college and
university campuses.
Thank you very much.
[The prepared statement of Dr. Zimmer follows:]
prepared statement of robert zimmer
Chairman Alexander, Ranking Member Murray, and the rest of the HELP
Committee: Thank you very much for inviting me to testify at today's
hearing on Exploring Free Speech on College Campuses. This issue is at
a critical juncture, with implications for the integrity of
universities and the education we offer. There are spillover effects on
our Nation as a whole. I am particularly pleased to share my views on
this topic, and I am appreciative of your commitment to tackle this
issue with the seriousness it deserves.
Let me begin with a story about my first visit to China as
president of the University of Chicago about nine years ago. I had been
invited to deliver a keynote address at Zhejiang University in Hangzhou
to an audience of about 150 students and a group of faculty and
university leaders. My hosts asked me to speak about American
universities in general, but also about why there were so many Nobel
Laureates among the faculty and alumni of the University of Chicago. I
was asked, as I have been asked regularly in my many subsequent trips
to China, ``What is the magic UChicago sauce?''
I replied that its key ingredient was ongoing intellectual
challenge and rigorous questioning. Many leading economists,
physicists, chemists, and other scholars have prospered at UChicago
because of the strong cultural commitment on campus to discourse,
argument, and lack of deference. I described the workshops in
economics, where Nobel Laureates were not immune from intense,
sometimes withering, questioning by colleagues and students. UChicago
attracted scholars from around the world because they understood this
environment was best for developing and sharpening their ideas. While
UChicago may be extreme in this culture among universities, I explained
that the lack of deference, the openness to discourse, and ongoing
mutual challenge was one of the great strengths of higher education in
the United States much more generally. In fact, this attribute of
American higher education institutions provided a magnet for talented
individuals from around the world.
The students in China were fascinated by this description and how
it related to many deep aspects of Chinese culture with its focus on
duty, respect, and hierarchy. ln fact, over the past decade, many
leaders in the Chinese academic world have been explicitly working to
inject into their own institutions a tone of significantly more
questioning, and with it the accompanying inventiveness.
What I did not anticipate then was that the tone in American
institutions of higher education would dramatically change for the
worse over the next decade. During this period, academic institutions
experienced proliferating demands for decreased freedom of expression
and open discourse, demands coming from within the institutions
themselves. Invited speakers have been dis-invited because a vocal
segment of a university community found their views unsatisfactory;
faculty have been pressured to make public apologies for their
statements that some deemed offensive; and an entire culture has
emerged in which free and open discourse, while still being formally
embraced, is explicitly or implicitly being relegated to a lower
priority than other concerns. Among a small sample of the dis-invited
are Laura Bush, Henry Kissinger, Christine Lagarde, Condoleezza Rice,
and Larry Summers. While these are highly visible public figures, the
list of the dis-invited includes individuals from a wide range of
fields and disciplines. Such episodes are now so commonplace that in
some circles they are viewed as almost normal. Thus, while the Chinese
academy aims to inject more argumentation and challenge into their
education, many American higher educational institutions are moving in
the opposite direction, sacrificing a commitment to challenge and
questioning. In doing so, they avoid the difficulties of opposing the
chilling effects of an emerging discourse of political correctness.
While it is necessary to focus on the threats from within
universities to open discourse and argumentation on campuses, it is
important to see that such threats also come from outside universities.
These are particularly significant issues for public universities where
overly enthusiastic public officials may have a misguided sense of
protecting the public from various types of thought. External threats,
both to pubic and private universities, have been present throughout
the history of universities and often been more menacing than internal
threats. They may appear in extreme forms, for example during the
McCarthy era. External threats continue today. The external actors
often have totally different perspectives than internal actors--but the
intended impacts of both are to limit discourse. Nevertheless, while
new threats may materialize quickly, the most active threats in recent
years have been from within universities themselves.
These current developments undermine our universities. There are
three questions to address in considering this phenomenon: First, why
is it important? Second, what are the Chicago Principles, affirming a
commitment to free expression and open discourse? Third, what are the
drivers of this national shift in discourse within higher education
away from free expression?
Let me begin the question of importance by saying what is not
involved. I am sure this is well known among the members of the
Committee, but because there is a common misperception I want to
emphasize that for private universities the First Amendment to the U.S.
Constitution is not directly germane to these issues. Rather, what is
pertinent are the very purpose and mission of universities. That
mission can be summarized in three words: education, research, and
impact. Every question about universities' actions and policies needs
to be evaluated in light of these core missions. It is here that the
roles of free expression and academic freedom--and their companions,
free listening and open questioning--are essential.
Every student at a university deserves an education that deeply
enriches their capabilities. This necessitates acquiring knowledge, but
more importantly acquiring general skills and habits of mind that will
enhance their approach to future challenges. They must learn to
recognize and evaluate evidence of various sorts, challenge their own
and others' assumptions, effectively argue their position, grasp both
power and limitations in arguments, confront complexity and
uncertainty, synthesize different perspectives, understand that context
matters, think through unintended consequences, and take account of
change, tradeoffs, and uncertainties. If the education we provide does
not give students the opportunity to acquire these abilities, we are
simply shortchanging them. They will be under-prepared to make informed
decisions in a complex and uncertain environment, which is inevitably
the world they will confront upon entering the workplace, independent
of the particular path they choose.
Imparting these skills is a tall task. But it is evident from the
skills I have listed that exposure to a variety of views and the
arguments for and against them is not only critical to this process but
lies at its very core. Conversely, permitting an environment in which
students' views and assumptions are not challenged, in which they do
not develop the habits of mind of recognizing and evaluating their own
assumptions, and in which they cannot fully and actively participate in
discourse with multiple perspectives is shortchanging them. Simply put,
if we want to do an excellent and responsible job of educating students
at the highest level, an environment of free expression and open
exchange of ideas is critical.
The same is true for an effective research environment. Deep and
impactful research entails originality--and this requires seeing in new
ways. The Nobel Prize winning biologist Albert Szent-Gyorgyi famously
said, ``Discovery is seeing what everyone else has seen, and thinking
what no one else has thought.'' A climate that fosters this level of
discovery relies on great intellectual freedom. Gary Becker, a Nobel
Laureate in economics at UChicago and one of the most influential
social scientists of the second half of the 20th century, provides an
illuminating example. Becker, who had been a doctoral student at
UChicago, began applying economic ideas to a sequence of societal
issues--family, discrimination, crime, drugs, education, and more. For
some time, his work was viewed by many either with alarm or as worthy
of dismissal. The widely accepted understanding in social science at
that time was that economics methodologies had no weight in these very
human problems. But Becker persisted, in an environment at UChicago in
which these unpopular ideas were free to be explored, challenged,
tested, and developed. Ultimately, his ideas became widely accepted as
one valuable approach to these matters and Becker himself was
recognized as a great pioneer. lf he had been hounded out of higher
education because the academy found his ideas offensive, as many did at
the time, our understanding today would be much more limited.
Why is this important not only for the nature of universities but
for our country? Much of universities' impact is through the power of
their faculty's research and the work of their alumni--and, as we have
described, such impact at the highest level depends on an environment
of free expression and open discourse and the resulting climate of
challenge. To be challenged is also why many of the leading ambitious
young people from around the world have come to the United States. Such
is the ultimate importance and stake for the country--will our higher
education system continue to be the best in the world? Will our
education continue to be the most impactful? Will we continue to
attract highly talented people? Or will we lose focus on the mission of
universities and allow other concerns to erode the efficacy of our
institutions?
Now Let me turn to the second topic, namely the Chicago Principles,
which are a forceful statement of one University's commitment to free
expression. Unlike all the Universities in the United States that
preceded it, save Johns Hopkins, the University of Chicago was
established as a research University from its inception. From its early
days, the leadership and faculty of the University articulated the
importance of free expression and open discourse to its missions of
rigorous inquiry and providing an education embedded in intellectual
challenge. Throughout its history, the University has stood against
suppression of speech, with its faculty and many of its presidents--
William Rainey Harper, Robert Maynard Hutchins, Edward Levi, and Hanna
Gray as key examples--playing visible leadership roles.
It was in this historical context and against the backdrop of the
shifts in the American academy over the past decade, that in July 2014,
I appointed and charged a faculty committee chaired by UChicago Law
School professor Geoffrey Stone. The committee was charged with
``articulating the University's overarching commitment to free, robust,
and uninhibited debate and deliberation among all members of the
University's community.'' In other words, the committee was asked to
provide a concrete statement that encapsulated the underlying and
broadly understood culture and views on free expression of the
University of Chicago, a culture that had been present at the
University since its founding. In response, the Stone Committee put
forth a thoughtful, powerful, and clear articulation of the
University's stance, laying out a set of principles now becoming known
as the Chicago Principles. Below, I will summarize three such
principles from the report.
The first principle is a statement of an unwavering commitment to
free expression: ``the University 's fundamental commitment is to the
principle that debate or deliberation may not be suppressed because the
ideas put forth are thought by some or even by most members of the
University community to be offensive, unwise, immoral, or wrong-headed.
It is for the individual members of the University community, not for
the University as an institution, to make those judgments for
themselves, and to act on those judgments not by seeking to suppress
speech, but by openly and vigorously contesting the ideas that they
oppose. Indeed, fostering the ability of members of the University
community to engage in such debate and deliberation in an effective and
responsible manner is an essential part of the University's educational
mission. ``
In the same vein, relevant to current considerations, it states:
``it is not the proper role of the University to attempt to shield
individuals from ideas and opinions they find unwelcome, disagreeable,
or even deeply offensive. Although the University greatly values
civility, and although all members of the University community share in
the responsibility for maintaining a climate of mutual respect,
concerns about civility and mutual respect can never be used as a
justification for closing off discussion of ideas, however offensive or
disagreeable those ideas may be to some members of our community. ``
The second principle is that the University recognizes, indeed
embraces, non-disruptive protest as a legitimate means of free
expression, and as such supports the rights of all members of the
University community to engage in such protest.
The third principle the report articulates is that disruptive
protest or other means of limiting the rights of others to engage in
free expression, work, and open discourse is not acceptable, and is in
fact a violation of the University's commitment to free expression. The
distinction between non-disruptive and disruptive protest is essential.
Preventing others from speaking and listening is arrogating to oneself
the right of free expression, but denying it to others.
The Chicago Principles are a powerful statement. However, stating
principles is not the same as implementing them. At UChicago, we
recognize that implementation requires constant work. We have the
benefit of an institutional culture with a long history of support for
free expression, a willingness to express views contrary to popular
trends, wide support of the faculty and deans on one hand and the board
on the other, and a student body and faculty that, in most cases, are
at UChicago because of a commitment to an environment of rigorous
inquiry and open discourse. Nevertheless, we have thousands of new
students coming to campus every year, and it is essential for us to be
articulating, explaining, demonstrating, and engaging in discourse
about these principles and how to implement them.
Let me turn now to my third question--what drivers have enabled the
current movement against free expression within higher education? I
will address four such drivers.
First, free speech is not a natural state of human affairs. Most
people actually do not like it. They like the speech of those they
agree with, which they will defend at great length--but there are fewer
who are so enthusiastic about the free speech of those with whom they
disagree. As a result, people are often inclined to silence, or at
least condone silencing, those who disagree with them. They justify
this in a variety of ways--morality, politics, acceptable behavior,
preservation of authority, challenge to authority, opposing change,
demanding change, and more. Such individuals rarely imagine that in
preventing others from expressing views that they are sowing the wind--
and ultimately may reap the whirlwind of someone suppressing their own
speech. Fostering an environment of free expression and open discourse
starts with the fundamental problem that for many people, free
expression itself is suspect.
One consequence for universities is that a necessary part of a
student's education is gaining understanding of the importance of free
expression within the most enabling and powerful education they can
have. Functioning in an environment of free expression and rigorous
argumentation is not simple, nor is it necessarily intuitive. It is our
collective responsibility in providing an excellent education to help
students understand, value, and participate fully in this environment.
Second, suppression of speech today is a misguided response to an
important national issue, namely that of diversity and inclusion. Our
country, like all countries, has a history of powerful exclusionary
behavior. A history of slavery and racism, closing of opportunities for
women, discrimination on the basis of religion, and exclusionary and
even criminalizing responses to same sex relationships are examples of
real and serious issues that the country faces in fulfilling an
aspiration of providing opportunities for all. Our country has surely
made and continues to make very significant progress, but the legacy of
this history remains salient, impactful, and even painful today. From
the perspective of a University, what should this mean? It should mean
a serious commitment to full inclusion of all our students in the most
enriching education we can possibly provide. This in turn entails
ensuring that all our students are fully included in open discourse,
challenge, free expression, and argumentation that lie at the very core
of providing such an education. What it does not mean is protecting
students from this discourse. It is a misguided view to think that we
are helping students--particularly students from groups who may have
been the victims of exclusionary behavior--by protecting them from
speech. This misguided view is a major problem--it is in fact just the
opposite that should be happening. We should be helping these
students--just as we need to help all students--to fully participate.
We should not facilitate retreat and separation from the most enriching
education we can provide. Doing so would be an abdication of our
responsibilities as educators.
Helping students fully participate is itself not simple.
Universities often provide educational support for students based on
their individual situations. There are times when engaging free
expression may be particularly difficult for students who are a target
of exclusionary rhetoric. This should be recognized and students
appropriately supported. Likewise, all students should be helped to
recognize the importance of a civil society. But both issues should be
addressed in the context of helping students participate fully in open
discourse, not in the context of creating an ambient environment of
restricted discourse.
A third driver is too much unreflective moral certainty in too many
circumstances--that one knows what is right and that anyone who holds
other perspectives is not just wrong but morally flawed. Simply
declaring the unacceptable presence of villainy, while not confronting
intellectual challenge, is just a short stop away from suppression of
speech. Within many aspects of public life, we have seen just how
unproductive, even destructive, moral fervor in demonizing others can
be. Inside universities, where learning to confront those with whom you
may passionately differ is a key part of education, such demonization
is particularly and deeply troubling.
The fourth and final driver that I want to address is the all too
common de-historicized view of the world, in this case applied to the
role of universities. Universities are institutions with a long history
and the prospects for a very lon future. The particular contributions
they alone can make to society--inquiry, discovery, and enriching
education--are critical societal needs that will far outlast any
particular political issue of the day, no matter how important it is.
The environment of free expression, academic freedom, and open
discourse that is critical to universities' effectiveness cannot be
taken for granted. It has been hard-won over the course of a millennium
and history demonstrates its fragility. It is always tempting to
respond to the urgency of the present and fail to consider long-term
consequences. A de-historicized view of the importance of free
expression, in conjunction with an all too easy attitude that allows
for minimizing its importance in return for a moment of political
expediency, is another contributor to the situation we now confront.
In the many examples of suppression of speech that we are seeing on
campuses, some combination of these four forces is at play. It is their
complexity, lack of transparency in revealing themselves, and mutual
interactions that make combating them a significant challenge.
Now that I have addressed these three questions--namely the
importance of free expression, the Chicago Principles, and the drivers
of our current situation--let me turn to how reactions in the academic
community to the Chicago Principles illuminate the issues.
Two related questions I am frequently asked concerning the Chicago
Principles are: first, why doesn't every institution just sign on to
them or, alternatively, present its own equivalent statement? Second,
why don't those nstitutions that have made such statements in the past
actually live by them?
My answer begins with a reminder that a select number of
universities or their faculty have adopted these principles or
articulated similar ones, and strive to live up to them. UChicago is
not alone. On the other hand, many institutions are still grappling
with the issues. This uncertainty, not surprisingly, invites caution in
response.
What do I think some institutions and their leaders are uncertain
about?
Every institution needs to decide what it is and what it aspires to
be. As I have described, at UChicago we have had a great sense of
clarity about this since the University's inception. But all
universities need not be identical. Institutions can and do--either
explicitly or implicitly--make choices that define them. These
definitions can differ, legitimately so. Institutions with religious
affiliations, those with defined social missions, and military
academies are all examples where the Chicago Principles may not be the
appropriate articulation of values.
What the current situation and the Chicago Principles pose for many
institutions is a clear question--how much are free expression and open
discourse, along with all the challenges these present, a central
defining feature of its education, or is it just one of the many values
they have that can be traded off against others? This in turn raises
the question of the actual nature of the education they are committed
to--and what they believe is of sufficient importance to this education
that they will defend it in challenging circumstances such as we face
today?
I believe many institutions remain uncertain and are still
clarifying their responses to these questions. Do they subscribe to the
Chicago Principles, even if articulated in their own words? What
actions would they take in supporting these principles? There is no
reason to suppose that all institutions will come to the same
conclusion.
Here is an example of what an institution might honestly say if it
came to a different conclusion:
``We believe in free expression most of the time, and believe that
you as a student will have an inspiring education and that you as a
faculty member will have a wonderful environment for research and
teaching.
However, this institution will on occasion decide, based on the
passionate views of a segment of the community or our own views of
morality, that we will dis-invite speakers or implicitly condone the
disruption of their speech and you will therefore not have the
opportunity to hear or question them. This institution will on occasion
decide that views expressed by a faculty member are not acceptable and,
accordingly, they may be asked to apologize for their statements or to
stop raising certain issues. We accept the chilling effect this can
have on discourse and the resulting education, because we believe other
values are at stake.''
As members of the Committee can surmise, I would not be pleased to
see many universities take this stance, either explicitly or
implicitly, because I do not believe it provides the best education or
environment for research. On the other hand, it could be an honest and
legitimate institutional stance. But there is a grave danger that by
not confronting the question head on, many institutions are drifting
into this position even if they are not stating it in a forthright
manner. The combination of uncertainty, lack of clarity about the
foundations of education being offered, and the increasing opposition
to free expression I have described have led many institutions to
reflection and understandable caution. I hope that as institutions
think through the issues, many more will conclude the need for a strong
articulation of the centrality of free expression and open discourse to
the education they offer and the quality of their research, and that
their actions will come to reflect this determination.
These considerations lead naturally to my final topic: What is to
be done? How do we repair, or at least begin to repair, the situation
in which the drift into restricted rather than open discourse is so
prevalent?
Addressing these issues ultimately means addressing the culture of
an institution. Where the culture of free expression and open discourse
is strong, that culture needs to be purposefully reinforced. For every
year, thousands of new students come to campus who may be unaware of
the centrality of free expression to the efficacy of their education.
On the other hand, where the culture of free expression and open
discourse is not strong, the institution needs to undertake a
purposeful attempt to change this culture. We all know how difficult
culture change in an institution can be. It certainly cannot happen
quickly and it requires sustained work.
In either situation, leadership is required, and inevitably that
means University presidents, provosts, and deans. These individuals are
responsible for overseeing and sustaining great universities, where
free expression, free listening, and free challenge are indispensable.
Therefore, the responsibility of these positions demands that leaders
reinforce these values as central to the meaning of universities. To be
effective, the president in particular needs the clear support of the
Board of Trustees on this matter.
Likewise, in either situation, the role of the faculty and
leadership within the faculty is critical. The faculty have ultimate
responsibility for educational programs, and a clear view by the
faculty on the importance of academic freedom and freedom of expression
for the efficacy of that education is necessary. There are a number of
institutions in which faculty are grappling with this question, and
without a firm commitment from a significant portion of the faculty, it
is difficult to imagine progress.
Finally, the receptivity of students to a challenging education of
open discourse has a significant impact on a University's culture.
College students in particular are at a singular moment in their lives.
They will be challenged in new ways--by unfamiliar ideas, varying
perspectives, different assumptions, and a diverse community. Embracing
this challenge and growing personally through the discomfort it may
bring will serve them well for their entire Jives. It is also possible
for students to take the easy route and seek a framework of comfortable
and restricted discourse. This would be to miss a personal opportunity
that will not return.
Cultural reinforcement or cultural change is a long process that
needs long term commitment and long term focus as a high priority. How
many institutions are willing and able to undertake this? We shall see.
Am I optimistic that the trend we see now can be reversed? There
are some hopeful signs. Until recently, it was frankly difficult on
many campuses to even discuss these issues. Areas where many would not
tread are now being openly discussed. There are many more statements
coming out in favor of free expression. But there is a long way to go
and the outcome, frankly, is not certain. As always, this will come
down not simply to what institutions say is good, but to what tradeoffs
they are willing to make and what they are prepared to do.
To stifle free expression and open discourse and suppress speech
that you don't like is just an invitation for others to do the same.
Accepting this behavior sets universities on a path that is
antithetical to fulfilling our highest aspirations. For the sake of our
students and their future success, our faculty and their capacity to
develop original and impactful research, and our country remaining a
magnet for the most talented from around the world, all this
suppression needs to be resisted.
I thank you very much for the invitation to share my thoughts on
this important topic. I again want to express my appreciation to the
Chairman, Ranking Member, and the rest of the HELP Committee for
convening this forum to discuss this issue that is so important to the
academy, to our students, and to our country.
______
Summary of Robert Zimmer
In my testimony, I will briefly address three topics related to
free speech and universities: First, why is it important? Second, what
are the Chicago Principles? Finally, what is necessary to reinforce or
strengthen the climate on college campuses with regard to freedom of
expression?
Free speech and open discourse is at the core of the very purpose
and mission of universities. That mission can be summarized in three
words: education, research, and impact. Every question about
universities' actions and policies needs to be evaluated in light of
these core missions. It is here that the roles of free expression and
academic freedom--and their companions, free listening and open
questioning--are essential. Every student at a University deserves an
education that deeply enriches their capabilities. This necessitates
acquiring knowledge, but more importantly acquiring general skills and
habits of mind that will enhance their approach to future challenges.
They must learn to recognize and evaluate evidence of various sorts,
challenge their own and others' assumptions, effectively argue their
position, grasp both power and limitations in arguments, confront
complexity and uncertainty, synthesize different perspectives,
understand that context matters, think through unintended consequences,
and take account of change, tradeoffs, and uncertainties. If the
education we provide does not give students the opportunity to acquire
these skills and abilities, they will be under-prepared to make
informed decisions in a complex and uncertain world they will confront
upon entering the workplace
Free speech is important not only for the nature of universities
but for our country. Much of universities' impact is through the power
of their faculty's research and the work of their alumni--such impact
at the highest level depends on an environment of free expression and
its resulting climate of challenge. To be challenged is also why many
of the leading ambitious young people from around the world have come
to the United States. Such is the ultimate importance and stake for the
country--will our higher education system continue to be the best in
the world? Will our education continue to be the most impactful? Will
we continue to attract highly talented people? Or will we lose focus on
the mission of universities and allow other concerns to erode the
efficacy of our institutions?
Regarding the Chicago Principles, in July 2014, I charged a faculty
committee with providing a concrete statement that encapsulated the
underlying and broadly understood culture and views on free expression
of the University of Chicago. In response, the Stone Committee lay out
a set of principles now becoming known as the Chicago Principles. Those
principles are summarized as follows: first, an unwavering commitment
to free expression and open discourse; second, the University
recognizes, indeed embraces, non-disruptive protest as a legitimate
means of free expression, and as such supports the rights of all
members of the University community to engage in such protest; and
third, disruptive protest or other means of limiting the rights of
others to engage in free expression, work, and open discourse is not
acceptable, and is in fact a violation of the University's commitment
to free expression.
Finally, how do we begin to repair the situation in which we find
ourselves? In my testimony, I discuss the drivers that have enabled the
current movement against free expression within higher education, which
leads me to the conclusion that ultimately, we must address the culture
of our institutions. This will require leadership on the part of both
the administration and the faculty, as well as a receptivity of
students to a challenging education of open discourse. Otherwise, we
will find ourselves on a path that is antithetical to fulfilling our
highest aspirations. For the sake of our students and their future
success, our faculty and their capacity to develop original and
impactful research, and our country remaining a magnet for the most
talented from around the world, we must resist the suppression of free
speech and open discourse on college and University campuses.
______
The Chairman. Thank you, Dr. Zimmer.
Ms. Strossen, welcome.
STATEMENT OF NADINE STROSSEN
Ms. Strossen. Thank you so much, Chairman Alexander and----
The Chairman. Make sure your microphone is on, Ms.
Strossen.
Ms. Strossen.---- Oh, that would help. It takes a scientist
to do this. A mere lawyer cannot.
[Laughter.]
Ms. Strossen. If I may start again, with amplification,
thank you so much, Chairman Alexander and Ranking Member Murray
and other Members of this Committee, for holding these hearings
on such a vitally important subject.
I really appreciated the opening remarks that both of you
gave, and if I could synthesize in a nutshell, Senator Murray,
you were rightly saying that on University campuses, as in the
rest of our society, we have to equally welcome and provide
opportunities for everyone, no matter who they are, and Senator
Alexander added to that, no matter what they believe.
Unfortunately, today, as Senator Alexander also noted, there
are many universities that are deeply committed to every other
kind of diversity but not the kind of intellectual diversity
that you saw being pursued at the Kennedy school.
Senator Alexander was kind enough to ask me to give some
First Amendment background, because, as Senator Murray rightly
said, everybody is in favor of free speech, but they have very
different concepts as to what freedom of speech actually
entails, and most people usually have a ``but.'' They say, ``I
believe in freedom of speech, but the one exception I want to
make is''--and very often, we have heard even lawyers, probably
not graduates of NYU Law School, but other lawyers and other
political leaders have said, ``Hate speech is not free
speech.''
That was a statement that was made, for example, by Howard
Dean, and I don't mean to single him out. Many others have. But
in defending Berkeley's decision not to allow Ann Coulter to
speak there, he made that pronouncement, ``Hate speech is not
free speech.''
I've just finished writing a book called Hate: ``Why We
Should Resist it with Free Speech, Not Censorship.'' If I may
say so, it addresses all of these concerns, because I
completely agree, Senator Murray, that we have such a
responsibility, including on campus, to combat the hateful
rhetoric, the hateful attitudes, the hateful conduct, including
violence, that we are seeing.
I also passionately believe, based on research and
experience, that the only effective way to do that is to fight
censorship, to fight violence, to fight disruption, because
those are all manners of repressing speech, and to allow
freedom of speech, as the Supreme Court has very sensibly
defined it. Interestingly enough, I give some quotes, including
from then President Barack Obama, who certainly is an expert on
hate speech, having taught constitutional law at the University
of Chicago, having been subjected to it himself, saying, ``The
most effective way to respond to hatred is not through
repression, but through counter speech.''
Interestingly enough, we have counter experiences in
Western European democracies, including many European
countries, Canada, Australia, which have, in fact, criminalized
hate speech, that is, speech that is disparaging. It has no
technical legal meaning, but the common understanding is speech
that is disparaging on the basis of race, gender, religion, and
other such factors.
The European countries, Canada, and Australia have
increasingly become critical of that repressive approach. Human
rights activists and lawyers there are saying, ``We should move
more in the American direction,'' because our society, for all
of the problems that we still have, has been able to move
forward by outlawing actual discrimination, by outlawing actual
hateful and biased crimes, by outlawing speech that directly
causes serious, imminent, specific harm, including the kind of
genuine--what lawyers call the genuine threat and intimidation
that, unfortunately, were targeted at Taylor Dumpson, and that
also constitutes a bias crime, and I understand is being--
prosecutor--investigated that way.
We have those tools. But, in addition, we need civil
society to speak out and to condemn. There was a movement in
this country about 25 years ago to suppress hate speech on
campus. It was advocated by a number of prominent law
professors, and I've gone back and looked at their articles,
and, interestingly enough, they make very important points
about the enormous harm to the psyches and equal opportunities
of students who were traditionally discriminated against if
they are subjected to a barrage of hate speech.
Interestingly enough, their complaints were not so much
only about the hate speech, but rather about the failure of
society, from university presidents on down, to condemn it, to
argue against it, to show support to those who were disparaged
by it. We have just seen completely a reversal in that sense,
which has been extremely helpful and empowering. What I find
most heartening is in all the campus activism that is not
disruptive, that is peaceful and constructive, we're having
more minority students than ever before speaking up in favor of
their own rights.
Freedom of speech, I believe, is empowering. It's best for
education, it's best for equality, and it provides intellectual
safety and the kind of training we need to welcome full-fledged
citizens of every group and of every ideological persuasion
into our society.
[The prepared statement of Ms. Strossen follows:]
Prepared Statement of Nadine Strossen
I would like to thank Chairman Alexander and Ranking Member Murray
for convening this hearing on such a critically important topic, and
giving me the opportunity to participate.
Chairman Alexander has asked me to summarize the legal standards
governing freedom of speech in higher education, ``and what speech
limitations schools may impose, particularly for so-called `offensive
speech' or `hate speech.'' I am honored to have the opportunity to do
this, especially as I have just written a book directly on point: HATE:
Why We Should Resist It With Free Speech, Not Censorship (Oxford
University Press, May 2018).
The research and analysis reflected in my forthcoming book have
made me more appreciative than ever of the two most fundamental general
First Amendment principles, which are essential pillars of not only
individual liberty, but also equality and democracy, including on our
Nation's campuses:
--the viewpoint neutrality principle, which bars government from
punishing any speech based solely on dislike of its viewpoint, no
matter how deeply or widely despised that viewpoint might be; and
--the emergency principle, which permits government to punish
speech when it directly causes specific imminent serious harm, such as
constituting a genuine threat, targeted harassment or ``bullying,'' or
intentional incitement of imminent violence.
These robust speech-protective principles have consistently been
endorsed for many decades, including in the campus context, by Supreme
Court Justices across the ideological spectrum. The Court likewise has
neutrally enforced these principles to protect controversial expression
ranging across the ideological spectrum: from left-wing protestors
burning an American flag, to right-wing demonstrators burning a cross.
In my capacity as a human rights activist, I am convinced, based
upon the historic and current record, that these cardinal First
Amendment principles are essential for furthering any political or
social cause, including human rights. This conclusion is reaffirmed by
examining how ``hate speech'' laws recently have been enforced in other
comparable countries; they have disproportionately suppressed
dissenting views and disempowered speakers.
Speaking in my capacity as a full-time educator for 33 years,\1\ I
am also convinced based on experience that these speech-protective
principles are essential for effectively educating and empowering our
nation's future leaders and engaged citizens, and thus for maintaining
a vibrant democracy. Being exposed to a diverse range of ideas,
including those they consider ``hateful,'' and which they hate, is
important for all students, including those who belong to groups that
have traditionally been subject to discrimination or marginalization,
and those who are engaged in activism. Therefore, when colleges and
universities seek to punish such controversial speech, or to shield
students from it, they are not only violating the students' free speech
rights, but they are also denying the students the rigorous education
they deserve, and hence depriving our society of fellow citizens who
are optimally equipped to participate constructively in our democratic
self-government.
---------------------------------------------------------------------------
\1\ The position of ACLU President is unpaid; while I served in
that position, I continued to earn my living as an NYLS professor.
Before joining the NYLS faculty in 1988, I began my teaching career as
a clinical faculty member at NYU Law School (1984-88).
---------------------------------------------------------------------------
Significantly, the preceding points have been strongly endorsed by
politically diverse leaders who are members of minority groups, and who
have themselves experienced the sting of ``hate speech,'' including
former President Barack Obama.
______
summary of nadine strossen
Introduction
I would like to thank Chairman Alexander and Ranking Member Murray
for convening this hearing on such a critically important topic, and
giving me the opportunity to participate.
Chairman Alexander has asked me to summarize the legal standards
governing freedom of speech in higher education, ``and what speech
limitations schools may impose, particularly for so-called `offensive
speech' or `hate speech.' '' I am honored to have the opportunity to do
this, especially as I have just written a book directly on point: HATE:
Why We Should Resist It With Free Speech, Not Censorship (Oxford
University Press, May 2018).
Summary of the most important First Amendment principles_which are
especially important on campus, for the education and empowerment of
all students, including those who have traditionally been subject to
discrimination, and those who are activists
The research and analysis reflected in my forthcoming book have
made me more appreciative than ever of the two most fundamental general
First Amendment principles, which are essential pillars of not only
individual liberty, but also equality and democracy, including on our
Nation's campuses:
--the viewpoint neutrality principle, which bars government from
punishing any speech based solely on dislike of its viewpoint, no
matter how deeply or widely despised that viewpoint might be; and
--the emergency principle, which permits government to punish
speech when it directly causes specific imminent serious harm, such as
constituting a genuine threat, targeted harassment or ``bullying,'' or
intentional incitement of imminent violence.
These robust speech-protective principles have consistently been
endorsed for many decades, by Supreme Court Justices across the
ideological spectrum. The Court likewise has neutrally enforced these
principles to protect controversial expression ranging across the
ideological spectrum: from left-wing protestors burning an American
flag, to right-wing demonstrators burning a cross. Just this past June,
the Court ringingly reaffirmed the First Amendment's protection even
for hateful and hated speech, unanimously striking down a Federal law
that denied registration to tradenames that ``disparaged'' particular
individuals or groups. As the Court declared: ``Speech that demeans on
the basis of race, ethnicity, gender, religion, age, disability, or any
other similar ground is hateful; but the proudest boast of our free
speech jurisprudence is that we protect the freedom to express 'the
thought that we hate.\2\
---------------------------------------------------------------------------
\2\ Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), quoting United
States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).
---------------------------------------------------------------------------
In my capacity as a human rights activist, I am convinced, based
upon the historic and current record, that these cardinal First
Amendment principles are essential for furthering any political or
social cause, including human rights. This conclusion is reaffirmed by
examining how ``hate speech'' laws recently have been enforced in other
comparable countries; they have disproportionately suppressed
dissenting views and dis-empowered speakers.
Speaking in my capacity as a full-time educator for 33 years \3\ I
am also convinced based on experience that these speech-protective
principles are essential for effectively educating and empowering our
Nation's future leaders and engaged citizens, and thus for maintaining
a vibrant democracy. Being exposed to a diverse range of ideas,
including those they consider ``hateful,'' and which they hate, is
important for all students, including those who belong to groups that
have traditionally been subject to discrimination or marginalization,
and those who are engaged in activism on behalf of various causes.
Therefore, when colleges and universities seek to punish controversial
speech, or to shield students from it, they are not only violating the
students' (and others') free speech rights, but they are also denying
the students the rigorous education they deserve, and hence depriving
our society of fellow citizens who are optimally equipped to
participate constructively in our democratic self-government.
---------------------------------------------------------------------------
\3\ The position of ACLU President is unpaid; while I served in
that position, I--continued to earn my living as an NYLS professor.
Before joining the NYLS faculty in 1988 I began my teaching career as a
chemical law professor at NYU Law School (1984-88).
---------------------------------------------------------------------------
Significantly, the preceding points have been strongly endorsed by
politically diverse leaders who are members of minority groups, and who
have themselves experienced the sting of ``hate speech,'' including
former President Barack Obama. (Appendix A to this testimony includes
quotations from him and from other ideologically diverse leaders who
are all members of racial minorities, and who all oppose censorship of
``hate speech,'' including on campus, on the ground that such
censorship would undermine equality and meaningful educational
opportunities, including for minority students and student activists.)
List of key points discussed below
In the remainder of this written testimony, I will elaborate on the
above themes by briefly discussing the following points:
1) The Supreme Court has strongly enforced free speech principles
on public campuses.
2) Many private campuses, which are not directly governed by the
First Amendment, have chosen to protect the same free speech principles
that are binding on public campuses, because such principles are
consistent with academic freedom and sound pedagogy.
3) ``Hate speech,'' which has no specific legal definition, may be
punished (along with speech conveying any message) when, in context, it
directly causes specific imminent serious harm.
This means that hateful speech that poses the greatest danger of
harm is already punishable, but such speech may not be punished when it
is feared to pose a more speculative, attenuated risk of future harm.
4) ``Hate speech'' laws are inevitably unduly vague and overbroad,
thus leading to enforcement that is arbitrary at best, discriminatory
at worst.
5) The First Amendment protects the rights of peaceful, non-
disruptive protestors. In contrast, any protest that prevents a
speaker's message from being heard constitutes an impermissible
``heckler's veto,'' which violates not only the speaker's rights, but
also the rights of audience members who choose to listen to the
speaker.
6) The appropriate response to constitutionally protected ``hate
speech'' is not censorship, violence, or disruption, but rather,
``counterspeech,'' which counters its ideas and any negative impact
they might have. Our society must strive to provide access to
educational and communications resources that will facilitate robust
counter speech, especially by and on behalf of the most vulnerable
members of our communities.
7) Equal rights movements are especially dependent on robust
freedom of speech, including the viewpoint neutrality and emergency
principles.
8) Shielding students from hateful and hated ideas may well
undermine their psychic and emotional well-being, as well as their
education and preparation for effective participation in the workplace
and the public sphere.
Brief discussion of these key points
1) The Supreme Court has strongly enforced free speech
principles on public campuses.
The Supreme Court has long held that the same basic First Amendment
principles that protect speech in the broader public sphere should be
enforced especially vigorously on public college and University
campuses, recognizing that they constitute special ``marketplaces of
ideas,'' where academic freedom concerns reinforce general free speech
concerns. For example, in 1973 the Court upheld students' right to
``disseminat[e] . . . . ideas--no matter how offensive,'' and
accordingly overturned the expulsion of a student for distributing a
campus newspaper whose cover page contained a graphic cartoon
protesting police brutality; it depicted helmeted, club-wielding
policemen raping the Statue of Liberty and the Goddess of Justice.
In a 1967 decision, the Court eloquently paid tribute to the
supreme importance of freedom of speech on campuses, not only for the
sake of the students and faculty, but also for the sake of our society
and democracy more generally:
Our Nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us....That freedom is
therefore a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom . . . .
The Nation's future depends upon leaders trained through wide exposure
to that robust exchange of ideas which discovers truth ``out of a
multitude of tongues, [rather] than through any kind of authoritative
selection.'' . . .Teachers and students must always remain free to
inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die\4\.)
---------------------------------------------------------------------------
\4\ Keyishian v. Board of Regents, 385 U.S. 589, 602-603 (1967)
[citations omitted].
---------------------------------------------------------------------------
2) Many private campuses, which are not directly governed by the
First Amendment, have chosen to protect the same free speech principles
that are binding on public campuses, because such principles are
consistent with academic freedom and sound pedagogy.
A leading example is the University of Chicago, which has prided
itself on defending academic freedom and freedom of speech, and serving
as a model in that regard for other higher education institutions,
public and private alike. For example, in 2015 the University of
Chicago adopted a set of principles that reaffirm the speech-protective
tenets that the First Amendment secures on public campuses \5\
declaring:
---------------------------------------------------------------------------
\5\ https://freeexpression.uchicago.edu/page/statement-principles-
free-expression
---------------------------------------------------------------------------
[I]t is not the proper role of the University to attempt to
shield individuals from ideas and opinions they find unwelcome,
disagreeable, or even deeply offensive. Although the University greatly
values civility, and although all members of the University community
share in the responsibility for maintaining a climate of mutual
respect, concerns about civility and mutual respect can never be used
as a justification for closing off discussion of ideas, however
offensive or disagreeable those ideas may be to some members of our
community.
3) ``Hate speech,'' which has no specific legal definition, may be
punished only when, in context, it directly causes specific imminent
serious harm. This means that hateful speech that poses the greatest
danger of harm is already punishable, but such speech may not be
punished when it is feared to pose a more speculative, attenuated risk
of future harm.
The term ``hate speech'' has no specific legal meaning. That is
precisely because the Supreme Court never has defined a category of
constitutionally unprotected ``hate speech,'' which is excluded from
First Amendment protection based on its message or viewpoint. In this
critical respect, ``hate speech'' is different from ``obscenity,'' the
legal label for a subset of sexually oriented speech that the Court has
specifically defined in terms of its message and excluded from First
Amendment protection. To underscore that ``hate speech'' has no
specific legal meaning, I--like some other commentators--put the term
in quotation marks; I note that Chairman Alexander's letter inviting me
to testify here likewise refers to ``so-called. . . `hate speech.' ''
The most generally understood meaning of ``hate speech'' is
expression that conveys hateful or discriminatory views against
specific individuals or groups, particularly those who have
historically faced discrimination. Beyond this core meaning, many
people have hurled the epithet ``hate speech'' against a diverse range
of messages that they reject, including messages about many important
public policy issues. Myriad political controversies, and the heated
rhetoric they often provoke, have generated charges and counter-charges
of ``hate speech.'' For example, members of the Black Lives Matter
movement have been accused of `` hate speech'' against police officers,
whereas critiques of the Black Lives Matter movement have been
denounced as ``hate speech'' against its supporters or against African
Americans generally. Evangelical Christians who charge that LGBT
sexuality is sinful have been accused of ``hate speech'' against gay
men and lesbians, whereas those who make these charges against
evangelical Christians have been accused of religious ``hate speech.''
While ``hate speech'' (and speech conveying any other message,
including an ``offensive'' one) may never be punished based on its
viewpoint alone, it may be punished (as may expression with any other
message) when, in context, it satisfies the emergency principle: it
directly causes specific imminent serious harm. The Supreme Court has
laid out criteria for several types of speech that directly cause
particular types of imminent serious harm and hence may be punished
consistent with the general emergency principle. Many instances of
``hate speech'' do satisfy these criteria. For example, the Court has
held that government may punish ``true threats'': statements through
which ``the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular individual
or group of individuals'' and, in consequence, the targeted individuals
reasonably fear such violence.
Sadly, some instances of campus ``hate speech'' do satisfy this
''true threat'' standard. For example, on May I , 2017, six pairs of
bananas strung in nooses were displayed on American University's campus
under circumstances in which they conveyed a ''true threat'' to student
Taylor Dumpson, who on that date became the University's first African
American student body president. The conclusion that these displays
were intended to convey a threat to harm Ms. Dumpson was made clear by
messages that were written on them, including: ``AKA FREE,'' referring
to the predominantly African American sorority Alpha Kappa Alpha, of
which Ms. Dumpson was a member; and ``HARAMBE BAIT,'' the name of the
Cincinnati Zoo gorilla that was killed in 2016 after a child had fallen
into its enclosure.
Some ``hate speech'' also satisfies criteria for additional types
of harmful expression that may be punished consistent with the general
emergency standard. These include targeted harassment or bullying,
which harries or intrudes upon its targets' freedom or privacy; and
intentional incitement of imminent violence, which is likely to occur
immediately.
In addition, ``hate speech'' may be indirectly punished when it
constitutes evidence of a ``hate crime'' or ``bias crime.'' These terms
refer to acts that already constitute crimes (that are not based on any
idea expressed)--such as assault or vandalism--when the perpetrator
intentionally selects the victim based on discriminatory factors, such
as the victim's race, religion, or sexual orientation. Because these
crimes are deemed to cause aggravated harms to both the individual
victim and society generally, they are subject to enhanced penalties.
Typically, the perpetrator's discriminatory intent in targeting a
particular victim is proved through the perpetrator's ``hate speech''
that is directly connected to the specific crime. For example, the
American University incident described above is being investigated as a
hate crime.
To underscore the fact that some ``hate speech'' may be punished,
in particular contexts when it satisfies the emergency principle, I use
the term ``constitutionally protected 'bate speech' '' to designate
such speech that does not satisfy this standard. Correspondingly, I use
the term `` `hate speech' law'' to designate any regulation (including
campus codes) that punishes constitutionally protected ``hate speech,''
therefore necessarily violating both the viewpoint neutrality and
emergency principles.
4) ``Hate speech'' laws are inevitably unduly vague and overbroad,
thus leading to enforcement that is arbitrary at best, discriminatory
at worst.
The Supreme Court has held that any law is ``unduly vague,'' and
hence unconstitutional, when people ``of common intelligence must
necessarily guess at its meaning.'' This violates tenets of ``due
process'' or fairness, as well as equality, because such a law is
inherently susceptible to arbitrary and discriminatory enforcement.
Moreover, when an unduly vague law regulates speech in particular,
the Jaw also violates the First Amendment because it inevitably deters
people from engaging in constitutionally protected speech for fear that
they might run afoul of the law. The Supreme Court has therefore
enforced the ``void for vagueness'' doctrine with special strictness in
the context of laws that regulate speech. ``Hate speech'' Jaws--which
suppress speech solely because of its hateful, hated message--
inevitably are unduly vague, because they center on concepts that call
for subjective judgments, starting with the very concept of ``hate''
itself. Just consider the examples I cited under Point #3 above,
illustrating that one person's hated ``hate speech'' is another
person's cherished positive speech.
Another closely related problem endemic to ``hate speech'' laws is
``substantial overbreadth''; their capacious, malleable language
encompasses speech that even the laws' proponents do not seek to
punish. This point was well stated by Eleanor Holmes Norton, an
African-American civil rights lawyer who was the first woman to chair
the Equal Employment Opportunity Commission, and who has been the
longtime District of Columbia Representative in Congress. Referring to
campus ``hate speech'' codes, she said:`` It is technically impossible
to write an anti-speech code that cannot be twisted against speech
nobody means to bar. It has been tried and tried and tried.''
In the United States, virtually all of the many campus ``hate
speech'' codes that courts have reviewed have been struck down on
grounds of undue vagueness and overbreadth. Typical is the University
of Michigan's ``hate speech'' code, which was one of the first to be
adopted, and which led to the first judicial decision about these
unavoidable First Amendment flaws. Federal judge Avern Cohn found that
the following key terms, describing the punishable speech, were unduly
vague: ``stigmatize,'' ``victimize,'' and ``threats to'' or
``interfering with an individual's academic efforts.''
During the oral argument, when Judge Cohn asked the University's
attorney how he would distinguish the proscribed speech from other
offensive speech, which the attorney conceded was protected, the
attorney answered, ``Very carefully.'' Welcome as this answer is in its
candor and humor, the point at issue is no laughing matter. When even
the University's legal counsel cannot explain the distinction between
protected and punishable speech, all members of the campus community
face enforcement that is unpredictable and inconsistent at best; and
arbitrary, capricious, and discriminatory at worst.
Indeed, the enforcement record under ``hate speech'' laws,
including on campus, has shown that they have (predictably)
disproportionately targeted whatever ideas or speakers are relatively
unpopular or dis-empowered in that particular community at that
particular time. As former Harvard University President Derek Bok
warned, in opposing efforts to suppress ``hate speech'' on campus:
``[W]e . . . should remember the long, sorry history of preventing . .
. civil rights activists from speaking at Southern universities on
grounds that they might prove 'disruptive' or 'offensive' to the campus
community, not to mention the earlier exclusion of suspected
communists.''
5) The First Amendment protects the rights of peaceful, non-
disruptive protestors. In contrast, any protest that prevents a
speaker's message from being beard constitutes an impermissible
``heckler's veto,'' which violates not only the speaker's
rights, but also the rights of audience members who choose to
listen to the speaker.
The right to dissent extends to peaceful, non-disruptive
protestors. They may express their disagreement with speakers in any
way that does not interfere with the speaker's right to convey a
message or audience members' right to bear it. Examples of such
permissible, non-disruptive protest include: displaying picket signs or
other symbols that don't obstruct audience members' views of the
speaker; turning backs to a speaker or other physical gestures that
don't block audience members' views; walking out of a speaker's forum;
and even making oral statements that briefly, temporarily interrupt the
speaker--for example, momentarily booing, hissing, or heckling. In
contrast, any protest that prevents a message from being delivered or
heard violates the free speech rights of the speaker and audience
members alike. Any such ``heckler's veto'' should be prevented and
punished by campus officials or other law enforcement authorities.
In order to secure our cherished freedom of speech and academic
freedom, it is important to prevent, deter, and punish any effort to
undermine these precious freedoms: not only official censorship, but
also violence by demonstrators or counter-demonstrators, and disruptive
protests.
Peaceful protests constitute the very kind of ``counterspeech''
that the Supreme Court repeatedly has hailed as the appropriate
response to hateful, hated speech, because the net result is more
speech, not less; in contrast, violent or disruptive protests have the
opposite effect, of stifling and reducing speech.
6) The appropriate response to constitutionally protected ``hate
speech'' is not censorship, violence, or disruption, but rather,
``counterspeech,'' which counters its ideas and any negative impact
they might have. Our society must strive to provide access to
educational and communications resources that will facilitate robust
counterspeech, especially by and on behalf of the most vulnerable
members of our communities.
As Justice Louis Brandeis declared in a historic 1927 opinion that
the Supreme Court unanimously embraced in 1969: ``The fitting remedy
for evil counsels is good ones. . . .If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not
enforced silence. Only an emergency can justify repression.''
The term ``counterspeech'' encompasses any speech that counters a
message with which one disagrees. In the context of ``hate speech,''
counterspeech comprises a potentially broad range of expression,
including speech that directly refutes the ideas the ``hate speech''
conveys; broader, proactive educational initiatives; and expressions of
remorse by discriminatory speakers. .
Paradoxically, in some circumstances the most effective form of
counterspeech can be silence. By deliberately choosing to ignore
provocative, hateful speakers, silence can powerfully convey Implicit
messages of disdain, while at the same time denying hateful speakers
the attention they seek and often get from sparking controversy.
The Southern Poverty Law Center (SPLC), which ``is dedicated to
fighting hate and bigotry,'' strongly opposes confrontational counter-
protests on strategic grounds. In 2017, it issued a guide for students
about how to curb the alt-right's increasing campus recruitment
efforts. The guide recommends a number of steps, including: seeking to
persuade the group that invited the alt-right speaker to campus to
withdraw its invitation; speaking out peacefully against the event;
meeting with campus groups that the alt-right targets, such as minority
student groups, to provide mutual support; and holding ``an alternative
event-away from the alt-right event-to highlight your campus'
commitment to inclusion and our Nation's democratic values.'' The first
and foremost strategy that the guide recommends, though, is ``above
all, [to] avoid confrontation with the alt-right speaker and
supporters.'' explaining: ``The alt-right thrives on hostility, and
hate feeds on crowds. Video footage of an altercation will only provide
cover for the speaker, who can claim to be a victim.''
In 2015 the European Commission against Racism and Intolerance
(ECRI) issued a report strongly urging European Nations to pursue non-
censorial responses to ``hate speech,'' including counterspeech. This
is especially noteworthy because many European Nations have enacted and
enforced ``hate speech'' laws with the encouragement of regional
bodies, including ECRl. But, as a result of its monitoring of the
efforts of European Nations to curb ``hate speech'' and discrimination,
ECRI has concluded that alternative, non-censorial measures are ``much
more likely'' than ``hate speech'' laws to prove effective in
ultimately eradicating'' ``hate speech'' and its potential harmful
effects.
Appendix A quotes former President Obama and other, ideologically
diverse leaders who are members of minority groups, urging minority
students and others who are disparaged by ``hate speech'' to engage in
counterspeech. This can be an empowering experience, thus curbing
feelings of shame and Joss of self esteem that ``hate speech''
potentially engenders. Counterspeech transforms into activists those
whom ``hate speech'' laws cast as passive victims of such expression,
dependent on government protection.
Of course, not all targets of ``hate speech'' will respond with
counterspeech. The potential adverse psychic and emotional impact of
the ``hate speech'' might be so incapacitating for some that they are
unable to engage in effective counterspeech, at least in the short run,
and some disparaged people might not have access to means of
communication that would make their counterspeech effective. These are
serious concerns, which can and must be addressed through the following
kinds of measures: proactive counseling and training about encountering
and engaging constructively with ``hate speech''; education about
utilizing social media and other communications vehicles for drawing
attention and responding to ``hate speech''; providing access to
communications devices and technology for people who lack educational
and material resources; and information about organizations that track
and respond to ``hate speech'' incidents, and provide resources for
enabling others to do so.
Fortunately, we have seen increasing social justice advocacy
nationwide, including on campus, with members of minority groups
actively leading and engaging in such efforts, including much vigorous
(but non-violent and non-disruptive) counterspeech against hateful
expression. Moreover, surveys indicate that this encouraging trend
promises to continue.
7) Equal rights movements are especially dependent on robust
freedom of speech, including the viewpoint neutrality and
emergency principles.
Equal rights movements always have depended on robust freedom of
speech, in particular the viewpoint neutrality and emergency
principles, which shelter the egalitarian ideas that many have
considered harmful, disturbing, dangerous, and even hateful. By
definition, ideas that challenge the status quo and advocate law reform
tend to be seen in a negative light by the majority or the power elite.
That certainly has been true of expression challenging racial
injustice.
The leading pro-slavery advocate, Senator John C. Calhoun, argued
that abolitionists who criticized slavery ``libeled the South and
inflicted emotional injury.'' During the 1830's, many Southern states
enacted Jaws suppressing abolitionist speech, which was feared to spur
violence-in particular, slave rebellions--and indeed to threaten the
Nation's very survival. Likewise, Martin Luther King, Jr.'s historic
letter came from a Birmingham jail because he had sought to condemn
racial segregation and discrimination to audiences who hated and feared
those messages.
Given officials' consistent pattern of enacting and enforcing laws
to stifle civil rights advocacy, the NAACP (National Association for
the Advancement of Colored People) and other leaders of the twentieth-
century Civil Rights Movement opposed viewpoint-based censorship that
was inconsistent with the emergency principle, including ``hate
speech'' laws. When such Jaws were enacted in Skokie, Illinois, in
1977, for the specific purpose of blocking a planned neo-Nazi
demonstration, the ACLU, which won a Supreme Court ruling striking them
down, pointed out that these laws ``could have been used to stop Martin
Luther King, Jr.'s confrontational march into Cicero, Illinois, in
1968.'' As Congressman John Lewis eloquently observed in 2017:
``Without freedom of speech and the right to dissent, the Civil Rights
Movement would have been a bird without wings.''
8) Shielding students from hateful and bated ideas may well
undermine their psychic and emotional well-being, as well as their
education and preparation for effective participation in the workplace
and the public sphere.
It might seem self-evident that shielding people from speech that
could have negative psychic impacts would be positive for their mental
health. But some experts maintain that, at least in some circumstances,
people's mental health is actually undermined by shielding them from
speech to which they have negative psychic reactions, including
constitutionally protected ``hate speech.''
In a 2015 article, NYU psychology professor Jonathan Haidt and Greg
Lukianoff, the president of FIRE (Foundation for Individual Rights in
Education), summarized the pertinent psychological literature and
concluded: ``A campus culture devoted to policing speech and punishing
speakers . . . may be teaching students to think pathologically,''
causing depression and anxiety. They recommend that, to better protect
students' psychic well-being, colleges and universities should abandon
rather than enforce restrictive speech codes.
As Northeastern University psychology professor Lisa Feldman
Barrett wrote in 2017, while ``chronic'' stress can cause physical
illness, shorter-term stress, including the stress that results from
bearing ``hate speech,'' actually can be beneficial:
Offensiveness is not bad for your body and brain. Your nervous
system evolved to withstand periodic bouts of stress, such as
fleeing from a tiger . . . or encountering an odious idea . . .
. When you're forced to engage a position you strongly disagree
with . . . [it] feels unpleasant, but it's a good kind of
stress--temporary and not harmful to your body--and you reap
the longer-term benefits of learning.
Haidt and Lukianoff add that this ``good kind of stress'' at least
``sometimes makes an individual stronger and more resilient,''
explaining that ``[t]he next time that person faces a similar
situation, she'll experience a milder stress response because . . . her
coping repertoire has grown.''
The foregoing teachings from psychologists dovetail with the
conclusions of political leaders, including those who are members of
racial minority groups, based on their own experience and expertise. I
quote a number of these experts in Appendix A, including liberal
political activist Van Jones. From his perspective as a political
strategist, he recently made this point to a campus audience:
``I got tough talk for my liberal colleagues on . . . campuses
. . . . I don't want you to be safe, ideologically. I don't
want you to be safe, emotionally. I want you to be strong.
That's different. .. . [L]earn how to deal with adversity . . .
. I want you to be offended every single day on this campus. I
want you to be deeply aggrieved and offended and upset, and
then to learn how to speak back. Because that is what we need
from you.''
Conclusion
lf all of us who are committed to equal justice for all would
exercise our precious First Amendment rights, we would wield more
positive power, for more positive change, than any censorship could
ever do. As Dr. Martin Luther King declared: ``In the end, we will
remember not the words of our enemies, but the silence of our
friends.''
APPENDIX A: Statements by politically diverse minority leaders,
opposing censorship of `` hate speech,'' including on campus, because
it undermines equality and education, in particular for minority
students and student activists (listed in alphabetical order by last
name)
Anthony Kapel ``Van'' Jones, commentator and liberal political
activist, speaking at University of Chicago, 2017
``I got tough talk for my liberal colleagues on these campuses . .
. . There are two ideas about safe spaces: One is a very good idea and
one is a terrible idea. The idea of being physically safe on a campus-
not being subjected to sexual harassment and physical abuse . . . --I
am perfectly fine with that. But there's another view that is now . . .
ascendant, which I think is just a horrible view, which is that `I need
to be safe ideologically. I need to be safe emotionally I just need to
feel good all the time, and if someone says something that I don't
like, that's a problem for everybody else including the administration.
'
``I think that is a terrible idea for the following reason: I don't
want you to be safe, ideologically. I don't want you to be safe,
emotionally. I want you to be strong. That's different. I'm not going
to pave the jungle for you. Put on some boots, and learn how to deal
with adversity. I'm not going to take all the weights out of the gym;
that's the whole point of the gym. This is the gym.
``You can't live on a campus where people say stuff you don't
like?! These people can't fire you, they can't arrest you, they can't
beat you up, they can just say stuff you don't like-and you get to say
stuff back-and this you cannot bear?! This is ridiculous BS, liberals!
My parents . . . dealt with fire hoses! They dealt with dogs They dealt
with beatings! You can't deal with a mean tweet?! You are creating a
kind of liberalism that the minute it crosses the street into the real
world is not just useless, but obnoxious and dangerous.
``I want you to be offended every single day on this campus. I want
you to be deeply aggrieved and offended and upset, and then to learn
how to speak back. Because that is what we need from you in these
communities.''
Alan Keyes, conservative political activist
``The. . .protection [of a ``hate speech'' law] incapacitates. . .
. To... be told that white folks have the moral character to shrug off
insults, and that I do not. . . .That is. . . the most racist statement
of all!"
Michael Meyers, Executive Director, New York Civil Rights Coalition
``As a former student activist, and as a current black militant,
[I] believe[] that . . . paternalism [and] censorship offer the college
student a tranquilizer as the antidote to . . . racism . . . . What we
need is an alarm clock . . . more free speech!"
President Barack Obama, Howard University Commencement Address,
2016
``[O]ur democracy gives us a process designed . . . to settle our
disputes with argument and ideas and votes instead of violence and
simple majority rule . . . . So don't try to shut folks out, don't try
to shut them down, no matter how much you might disagree with them.
There's been a trend . . . of trying to get colleges to dis-invite
speakers with a different point of view, or disrupt a politician's
rally. Don't do that no matter how ridiculous or offensive you might
find the things that come out of their mouths. Because as my
grandmother used to tell me, every time a fool speaks, they are just
advertising their own ignorance. Let them talk . . . . If you don't,
you just make them a victim, and then they can avoid accountability.
``That doesn't mean you shouldn't challenge them. Have the
confidence to challenge them . . . . [Y]ou will have the responsibility
to speak up in the face of injustice. But listen. Engage. If the other
side has a point, learn from them. If they' re wrong, rebut them. Teach
them. Beat them on the battlefield of ideas. You might as well start
practicing now, because one thing I can guarantee you--you will have to
deal with ignorance, hatred, racism, foolishness . . . . I promise you,
you will have to deal with all that at every stage of your life.''
Theodore Shaw, former President, NAACP Legal Defense and
Educational Fund
``I believe deeply that minority group members who are
discriminated against . . . have the . . . responsibility . . . to
struggle and speak on their own behalf.''
Ruth Simmons, first Convocation Address as President of Brown
University
``The protection of speech that is offensive or insulting to us is
one of the most difficult things . . . we do. But it is this same
freedom that protects us when we are in turn powerless . . . . I won't
ask you to embrace someone who offends your humanity through . . . free
speech. But I would ask you to understand that the price of your own
freedom is permitting th[at] expression. . . . . You know something
that I hate? When people say, 'That doesn't make me feel good about
myself.' I say, 'That's not what you're here for.' . . . I believe that
learning at its best is the antithesis of comfort . . . . [So,] [i]f
you come to this [campus] for comfort, I would urge you to walk
[through] yon iron gate . . . . But if you seek betterment for
yourself, for your community and posterity, stay and fight.''
Gwen Thomas, educator and civil rights activist
``We have to teach (our young people] bow to deal with adversarial
situations. They have to learn how to survive with offensive speech
they find wounding and hurtful.''
______
The Chairman. Thank you, Ms. Strossen.
Mr. Cohen, welcome.
STATEMENT OF J. RICHARD COHEN
Mr. Cohen. Thank you, Mr. Chairman. Thank you, Ranking
Member Murray. It's an honor to be here today, especially with
such a distinguished group of fellow panelists.
You know, after Charlottesville, this Congress recognized
the growing prevalence of hate groups in this country, as
Senator Murray pointed out. The current debate about free
speech on college campuses is taking place against the backdrop
of that growing prevalence, against the backdrop of a white
nationalist movement that has been energized by Mr. Trump's
rhetoric, and that is targeting our colleges and universities.
As Professor Stanger wrote in a New York Times piece after
the incident at Middlebury, political life and discourse in the
United States is at a boiling point, and nowhere is the
reaction to that more heightened than on college campuses. Over
200 colleges have been targets of white supremacist, white
nationalist recruitment in recent months.
Prominent white nationalist figures have gone on college
speaking tours. Their goal is to poke a stick in the eye of
what they see as the bastions of liberal multiculturalism. They
want to spark a backlash so they will ennoble themselves and be
able to parade around as First Amendment martyrs.
In the material that we distribute to schools, to students
throughout the country, we urge students not to play into the
hands of the Richard Spencers of the world. Instead of
attending their speeches and giving them the spectacle that
they seek, we counsel students to hold alternative events that
express our deepest democratic values. If students choose to
protest, we urge them to do so peacefully.
Unfortunately, some students have other ideas and have
shouted down speakers. In some cases, protests have turned
violent, as members of loose knit coalitions of self-described
antifascists have stormed college campuses. Obviously, some
college students do not have a clear understanding of the First
Amendment. Part of the problem is, as Professor Stanger pointed
out in her article, that we have a crisis of civic education in
our country, particularly at the K through 12 level.
Despite the challenges that universities and colleges face,
I completely agree with Professors Strossen and Zimmer that
they must uphold our First Amendment values. Just as students
have a right to read what they want, they have a right to
listen to whoever they want, however obnoxious and racist those
speakers may be. When universities hold their facilities open
to outsiders, racists have a right to rent them on the same
terms as anyone else. We emphasize this point in the resources
that we distribute across the country to campuses.
We also emphasize that it's critical that the voices of
college leadership be heard. College presidents need not be
neutral. They can and should speak out in support of the First
Amendment, because it's among our most highest values and
because the presence of racist speakers on campus presents a
teachable moment. Just as importantly, college presidents
should speak out in support of the values of the 14th
Amendment, to distance their universities from racism and to
assure students who feel threatened that the University is
committed to maintaining an inclusive environment.
Indeed, every prominent person in public life, starting
with the President, should speak out in support of these same
values. Unfortunately, as Professor Stanger pointed out in her
New York Times piece, the President has not always demonstrated
fidelity to the First Amendment. He has suggested that the laws
protecting freedom of speech in the press, laws that have
constitutional underpinnings, should be changed. He has
encouraged his supporters at times to use violence against
those who protest against him. The implicit message is the
silencing of dissent. It is a message, according to Professor
Stanger, that has not been lost on college students.
In its post-Charlottesville joint resolution, Congress
urged the President to speak out against hate groups that
espouse racism, extremism, xenophobia, anti-semitism, and white
supremacy. Unfortunately, he has not done so consistently
during his campaign or during his Presidency. Indeed, the truth
is that President Trump has energized the white Nationalist
Movement that is now targeting our colleges and universities.
For this reason, the President has a special responsibility to
take the air out of the movement, a special responsibility to
heed Congress' recent call, to use all resources available to
the administration to address the growing prevalence of hate
groups in our country.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of J. Richard Cohen
The debate over free speech on college campuses is taking place
against the backdrop of increased activity by a white nationalist
movement that has been emboldened by President Trump's rhetoric and
that is targeting Colleges and Universities. As Congress has
recognized, there is a ``growing. . .prevalence of hate groups'' in our
country, something that was on full display at the University of
Virginia in Charlottesville this August. Since March 2016, white
nationalist groups have distributed racist recruitment flyers at more
than 200 colleges and universities across the Nation, and white
nationalist speakers have appeared at dozens of colleges. Their
appearances and that of other controversial speakers have been met by
disruptive protests in some cases. There also have been instances of
violence carried out by loose-knit, self-described outside groups of
anti-fascists.
The messages of white nationalist speakers may be abhorrent, but
their First Amendment rights, as well as those of students who wish to
listen to them, must be protected. Colleges and Universities are facing
difficult issues over the cost of security; however, they may not ban
speakers merely because of the anticipated reaction by protestors to
their words. To avoid giving white nationalist speakers the spectacle
they seek, students should boycott their speeches and hold alternative
events that promote our Nation's democratic values. If they choose to
protest white nationalist speakers, students should do so peacefully.
Colleges and Universities must protect the First Amendment rights
of all speakers. But College and University Presidents also should
speak out against racist speakers to distance their schools from them
and to reassure students that their schools are committed to
maintaining welcoming and inclusive environments. With his bully
pulpit, the President should speak out consistently and forcefully
against bigotry and in support of the First Amendment. Furthermore, he
should take responsibility for his role in energizing the white
nationalist movement and heed Congress' call to ``address the growing
prevalence of. . .hate groups in the United States.''
______
summary of j. richard cohen
My name is Richard Cohen. I am an attorney and the President of the
Southern Poverty Law Center, a civil rights organization founded in
1971. I have testified before numerous Congressional Committees,
including the Senate Committee on the Judiciary in June on the subject
of free speech on college campuses. I have served on the Department of
Homeland Security's Countering Violent Extremism Working Group and am a
recipient of the FBI Director's Community Leadership Award. I am
honored to appear before you today.
For more than three decades, my colleagues and I have been
monitoring and issuing reports about radical right activity in the
United States, including at colleges and universities, and have been
advising law enforcement officials, civic leaders, and college
administrators on how to respond to speeches and rallies held by hate
groups and their leaders. A few days before the violent demonstrations
in Charlottesville, Virginia, in August, we released a guide with
advice to student groups on how to respond when speakers associated
with the white nationalist movement come to their campuses.\1\ Less
than a week after the deadly Charlottesville events, we released a new
edition of Ten Ways to Fight Hate, our community guide for responding
peacefully to hate activity.\2\ A few weeks from now, we will be
releasing a training video for the law enforcement community on lessons
that can be learned from the events in Charlottesville.
---------------------------------------------------------------------------
\1\ The Alt-Right on Campus: What Students Need to Know (2017),
https://www.splcenter.org/20170810/altright campus-what-students-need-
know.
\2\ Ten Ways to Fight Hate: A Community Response Guide (2017),
https://www.splcenter.org/20170814/tenways-fight-hate-community-
response-guide.
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I'd like to make three points this morning.
First, the debate over free speech on college campuses is taking
place against the backdrop of increased activity by a white nationalist
movement that has been emboldened by President Trump's rhetoric and
that is targeting colleges and universities.
Second, although University officials and students may find white
nationalism abhorrent, they must respect the First Amendment rights of
white nationalist speakers and of the students who want to listen to
them.
Third, University administrators and public officials, particularly
the President, must speak out forcefully against white nationalism and
in support of the First Amendment. The President also should heed
Congress's call to use his administration's resources to fight the
growing prevalence of hate groups in our country.
White Nationalist Movement Emboldened by the Presidential Campaign Is
Targeting Our Nation's Colleges and Universities
On the night of Friday, August 11, 2017, as the joint resolution
unanimously passed by this Congress stated, ``hundreds of torch-bearing
White nationalists, White supremacists, Klansmen, and neo-Nazis chanted
racist, anti-Semitic, and anti-immigrant slogans and violently engaged
with counter-demonstrators on and around the grounds of the University
of Virginia in Charlottesville.''\3\ The shocking number of hardcore
racists who came to Charlottesville reflects that our country is facing
a newly energized white supremacist movement. The fact that the racists
marched at the University of Virginia reflects that the movement is
targeting our colleges and universities. The fact that violence erupted
reflects that the threat colleges and universities are facing is very
real.
---------------------------------------------------------------------------
\3\ S.J. Res 49, 115th Cong. (2017) (enacted).
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Congress has recognized the ``growing prevalence of . . . hate
groups'' in our country.\4\ Our research confirms the point. During the
last 2 years--a period that coincided with the Presidential campaign--
we documented a surge in the number of hate groups.\5\ The growth in
the number of hardline anti-Muslim groups last year was particularly
dramatic and followed a significant increase in hate crimes against
Muslims the year before, according to the FBI.\6\ As former President
George W. Bush noted during a speech earlier this month, ``bigotry
seems emboldened.''\7\
---------------------------------------------------------------------------
\4\ Id.
\5\ Hate Groups Increase for Second Consecutive Year as Trump
Electrifies Radical Right, Southern Poverty Law Center, Feb. 15, 2017,
https://www.splcenter.org/news/2017 /02/15/hate-groups-increase-
secondconsecutive_vear-trump-electrifies-radical-right.
\6\ Mark Potok, Anti-Muslim Hate Crimes Surged Last Year, Fueled by
Hateful Campaign, Southern Poverty Law Center, Nov. 14, 2016, https://
www.splcenter.org/hatewatcb/20I6/11/14/anti-muslim-hate-crimessurged_
last-year-fueled-hateful-campaign; Fed. Bureau of Investigation, Hate
Crime Statistics, 2015 (2016), https://ucr.fbi.gov/hate-crime/2015/
topic-pages/incidentsandoffenses_final. pdf.
\7\ http://thehill.com/homenews/news/356212-george-w-bush-bigotry-
seems-emboldened-in-us
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Regardless of whether President Trump intended it, his campaign
rhetoric ``unearthed some demons,'' to borrow Representative Mark
Sanford's words.\8\ Although white supremacists typically eschew the
political process, seeing both parties as irredeemably corrupt, they
took the unusual step of rallying around Mr. Trump's candidacy and
celebrating his victory. On his radio show from February 2016, for
example, former Klan chief David Duke told his listeners that ``voting
against Donald Trump. . . is really treason to your heritage.''\9\ On
election night, he tweeted that ``our people played a HUGE role in
electing Trump!''\10\ During a gathering of white nationalists just
blocks from the White House shortly after the election, white
nationalist leader Richard Spencer--who later played a prominent role
in the Charlottesville demonstrations--prompted sieg heils from
audience members after quoting Nazi propaganda in German. He responded
by shouting, ``Hail Trump! Hail our people! Hail victory!''\11\
---------------------------------------------------------------------------
\8\ Karen Tumulty and Robert Costa, The GOP Inherits What Trump has
Wrought (May 26, 2017), https://www.washingtonpost.com/politics/the-
gop-inherits-what-trump-has-wrought/2017/05/26/4e I 943ea-4177-1 I e7-
adba-394ee67a7582 story.html?utm term=.bc5a926d86fa
\9\ David Duke Says a Vote against Trump is Treason to White
Heritage, Hatewatch, Feb. 26, 2016, https://www.splcenter.org/hatewatcb
/2016/02/26/david-duke-says- vote-against-trump-treason-white-heritage.
\10\ 10 David Duke (@DrDavidDuke), Twitter (Nov. 9, 2016, 2: 14
AM), https://twitter.com/drdavidduke/status/796249464826687488'Iang=en.
\11\ Joseph Goldstein, Alt-Right Gathering Exults in Trump Election
with Nazi-Era Salute, N.Y. Times, Nov. 20, 2016, https://
www.nytimes.com/2016/11 /21/us/alt-right-salutes-donald-trump.html?
r=90
---------------------------------------------------------------------------
In the 10 days following the election, we documented nearly 900
bias-related acts of harassment, intimidation, and violence.\12\
Sixteen percent of the incidents took place on college campuses. Many
of the perpetrators invoked the president-elect's name or his slogans.
Cf supra note 8 (quoting Rep. Sanford) (``I've talked to a number of
people about it back home. They say, `Well, look, if the President can
say whatever, why can't I say whatever?' He's given them license.'').
During the Charlottesville demonstrations, David Duke stated, ``We are
determined to take our country back. We are going to fulfill the
promises of Donald Trump.''\13\
---------------------------------------------------------------------------
\12\ Ten Days After: Harassment and Intimidation in the Aftermath
of the Election, Southern Poverty Law Center, Nov. 29, 2016, https://
www.splcenter.org/20161I29/ten-days-after-harassment-and-
intimidationaftermath_ election.
\13\ Libby Nelson, ``Why we voted for Donald Trump'': David Duke
explains the white supremacist Charlottesville protests, Vox, Aug. 12,
2017, https://www.vox.com/2017/8/12/16138358/charlottesville-protests_-
david-duke-kkk.
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Colleges and universities are a prime target of the newly energized
white supremacist movement because it sees them as bastions of
liberalism and multiculturalism--institutions that are ``infected''
with political correctness. From the movement's perspective, making a
speech on a college campus is a highly symbolic act equivalent to going
into the belly of the beast. The statistics tell the story: Since March
2016, we have documented 329 incidents of racist recruitment flyers
being distributed on 241 different college campuses across the United
States--a number that continues to grow.\14\
---------------------------------------------------------------------------
\14\ https://www..splcenter.org/hatewatch /2017/I0/17 /white-
nationalist-fliering-american-college-campuses.
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A group called Identity Evropa, whose members must be of
``European, non-Semitic heritage,'' has been responsible for the
largest number of these recruitment efforts. The group was founded by
Nathan Darnigo, a student who was inspired by reading David Duke's
autobiography while in prison for assaulting an Arab cab driver \15\
Darnigo was involved in the Charlottesville demonstrations.
---------------------------------------------------------------------------
\15\ Shane Bauer, I met the White Nationalist Who `Falcon Punched'
a 95-Pound Female Protester, Mother Jones, May 9, 2017, http://
www.motherjones.com/ politics/20177/05/nathan-damigo- punching-
womanberkeley_white-nationalism/.
---------------------------------------------------------------------------
Members of Vanguard America, another racist group that has been
distributing flyers on college campuses, also were present in
Charlottesville. Wearing white polos with khakis, they chanted ``Blood
and Soil'' while marching on the campus of the University of
Virginia.\16\ James Fields, the man who killed Heather Heyer and
injured numerous people when he ran his car into a crowd, was
photographed rallying with Vanguard America.\17\
---------------------------------------------------------------------------
\16\ See Justin Moyer et al., Vanguard America, a White Supremacist
Group, Denies Charlottesville Ramming Suspect Was a Member, The
Washington Post, Aug. 15, 2017, https//www.washingtonpost.com local/van
guard-america -a-white- supremacist-group-denies charlottesvi11e-
attacker- was-a-member /2017/08/15/ 2ec897c6- 810e-1 le7-8072-
73e1718c524d story.html?utm term=.c83c0761Zba0: Deconstructing the
Symbols and Slogans Spotted in Charlottesville, The Washington Post,
Aug. 18, 2017, https://www.washingtonpost.com/graphics/2017 /local/
charlottesvillevideos/?utm_term=.eOSbed64f589.
\17\ See Moyer, supra note 16.
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Richard Spencer and Milo Yiannopoulos are prominent ``alt-right''
figures making the rounds on campus speaking tours. Spencer is an
openly racist, white nationalist leader who heads a small organization
called the National Policy Institute. He has called for ``peaceful
ethnic cleansing'' and the creation of a white ethno-state in North
America.\18\
---------------------------------------------------------------------------
\18\ Richard Bertrand Spencer, Southern Poverty Law Center, https:/
/www.splcenter.org/fightinghate/ extremist-files/ individual/richard-
bertrand-spencer-O.
---------------------------------------------------------------------------
Propelled by the publicity he received from his Washington speech
shortly after the election, Spencer launched what he called a ``danger
tour'' of campus speaking engagements. The Chronicle described Spencer
as a ``clean-cut 38-year-old, who attempts to bring an air of
respectability to a movement commonly associated with Nazis and the Ku
Klux Klan.'' Spencer told The Chronicle that he hoped to speak at ``all
the big'' Universities.\19\ He added that it was ``really important now
to go in with all guns blazing figuratively speaking, of course-and be
really radical and say I fundamentally disagree with you. The Donald
Trump phenomenon was, and still is, about identity at some deep
level.''\20\ At a speech at Texas A&M University on December 6, 2016,
Spencer told the audience and protestors that ``America, at the end of
the day, belongs to white men. . . . Our bones are in the ground. We
own it.''\21\
---------------------------------------------------------------------------
\19\ Katherine Mangan, Richard Spencer, White Supremacist,
Describes Goals of His ``Danger Tour'' to College Campuses, The
Chronicle of Higher Education. Nov. 28, 2016, http://
'Arww.chronicle.com/ article/White-Supremacist-Describes/2 38515.
\20\ Id.
\21\ White Nationalists Work to Make Inroads at U.S. Colleges,
Intelligence Report, Feb. 15, 2017, https://www.splcenter.org/fighting-
hate/ intelligence-report/2017/ white-nationalists-work-make-inroads-
us-colleges.
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Milo Yiannapoulos, a deliberately offensive, flamboyant provocateur
who calls himself the ``Dangerous Faggot,'' has spoken at dozens of
colleges.\22\ The co-author of Breitbart News' ``An Establishment
Conservative's Guide to the Alt-Right,'' he described Spencer as one of
the ``intellectuals'' of the movement.\23\ As a former tech editor at
Breitbart, Yiannapoulos was a frequent guest on Stephen Bannon' s radio
show. Bannon lauded Yiannopoulos as ``one of the leading voices of his
generation in this whole fight against cultural Marxism, the defense of
Western Civilization'' and compared his courage to that of Winston
Churchill.\24\
---------------------------------------------------------------------------
\22\ Allum Bokhari, Suck it up Buttercups: Dangerous Faggot Tour
Returns to Colleges in September, Breitbart News, July 6, 2016, http://
www.breitbart.com/milo/2016107/06/ milo-yiannopoulos- dangerousfaggott-
our-returns-campuses-fall/.
\23\ Allum Bokhari & Milo Yiannopoulos, An Establishment
Conservative's Guide to the Alt-Right,Breitbart, Mar. 29, 2016, http://
www.breitbart.com/ tech/2016/03/29/ an-establishment-conservatives-
guide-to-the-alt-right/.
\24\ Keegan Hankes, How Stephen Bannon Made Milo Dangerous,
Hatewatch, Feb. 23, 2017, https://www.splcenter.org/hatewatch/2017/02/
23/ how-stephen-bannon-made- milo-dangerous.
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Given the provocative nature of white nationalist activity aimed at
colleges and universities, it is not surprising that we have seen a
strong backlash among students. There have been instances when students
shouted down speakers. Unfortunately, there have been times when
violence has broken out, including at the University of California at
Berkeley and at the University of Virginia,\25\ something that we have
always denounced.
---------------------------------------------------------------------------
\25\ Carlo David & Frances Dinkelspiel, Chaos Erupts, Protesters
Shut Down Yiannopolous Events, Banks In Downtown Vandalized,
Berkeleyside (Feb. 2, 2017, 9:15 AM), http://www.berkeleyside.com/2017/
02/02/chaos-erupts-protesters-shut-yiannopolous-events-ban
banksdowntown-vandalized/; Events Surrounding White Nationalist Rally
in Virginia Turn Fatal, NPR: The Two-Way (Aug. 12, 2017, 5 o'clock AM),
http://www.npr.org/sections/thetwoway/2017/08/12/542982015/home-to-
university-of-virginia-prepares-for-violence-at-white-nationalistrally.
---------------------------------------------------------------------------
Much of the violence has been perpetrated not by students but by
persons who identify with the so-called Antifa--a loose-knit, self-
described anti-fascist movement. Antifa have been involved in bloody
street fights with white supremacists for decades. Many are organized
under a loose, national network known as Anti-Racist Action (ARA),
formed by anti-racist skinheads in Minneapolis in 1988 to combat neo-
Nazi skinhead gangs. ARA is dedicated, according to its website, to
``eliminating racism, sexism, anti-semitism, Islamophobia, homophobia,
transphobia, and discrimination against the disabled, the oldest, the
youngest, and the most oppressed people.'' Its tenets include
``challenging racists and fascists when they attempt to recruit,
organize, mobilize, propagandize, and cause harm to people'' and
``refusing to ignore the violent bigots that comprise racist and
fascist groups.''\26\
---------------------------------------------------------------------------
\26\ ``About Anti-Racist Action,'' available at https://
antiracistaction.org/about/.
---------------------------------------------------------------------------
Clearly, college administrators have their hands full.
The First Amendment Rights of All Speakers and Listeners Must Be
Protected
Last week, the organizer of Richard Spencer's campus speaking tour
filed a lawsuit against Ohio State University for refusing to rent a
campus venue to him for a Spencer speech.\27\ The organizer is likely
to win, just as he won a similar lawsuit against Auburn University
earlier this year.\28\ Although many universities, particularly after
Charlottesville, would like to refuse to allow Spencer to speak on
their campuses,\29\ they will all almost certainly lose if they try to
do so, absent unusual circumstances, in light of settled First
Amendment jurisprudence.
---------------------------------------------------------------------------
\27\ Comp!., Padgett v. Bd of Trs. of The Ohio State Univ., No. 2:
17-cv-00919 (S.D. Ohio Oct. 22, 2017), https://mgtvwcmh.files.
wordpress.com/2017 /1 O/osu-complaint.pdf.
\28\ Prelim. lnj., Padgett v. Auburn Univ., No. 3:17-cv-00231 (M.D.
Ala. Apr. 18, 2017),
ECF No. 9.
\29\ Ramsey Touchberry, Penn State Becomes Fifth University to Deny
White Nationalist Richard Spencer, USA Today College, Aug. 22, 2017,
http://college.usatoday.com/ 2017/08/22/ penn -state- becomes-fifth-
university- to-deny-white-nationalist- richard-spencer/.
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The First Amendment is a bedrock principle of our diverse
democracy. It protects the right to an open dialog, described by the
Supreme Court as a ``profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-
open.''\30\ Crucial to that commitment is that the Constitution does
not merely protect expression that is beautiful, or moral, or wise. It
commits us to protecting speech and acts that may be disagreeable or
even downright offensive to some.\31\ That commitment safeguards both
the rights of students to peacefully protest \32\ and the rights of
anti-war activists to burn the American flag.\33\
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\30\ Times v. Sullivan, 376 U.S. 254, 270 (1964).
\31\ Snyder v. Phelps, 562 U.S. 443, 458 (2011); Erznoznik v. city
of Jacksonville, 422 U.S. 205, 209-10(1975).
\32\ Tinker v. Des Moines lndep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969).
\33\ Texas v. Johnson, 491 U.S. 397, 414 (1989).
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Public colleges and universities are state actors.\34\ They must
ensure that their campuses both uphold the First Amendment and are
safe, welcoming, and supportive environments for students of all
backgrounds.\35\ Although private school administrators are not legally
bound by the same obligations,\36\ most typically assume those.duties
regardless, given their role in building a society in which First
Amendment freedoms are paramount.
---------------------------------------------------------------------------
\34\ Nat 'l Collegiate Athletic Ass 'n v. Tarkanian, 488 U.S. 179,
192 (l 988) (``A State university without question is a state
actor.'').
\35\ Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 633 (1999); see also Letter from Russlynn Ali, Assistant
Sec'y for Civil Rights, U.S. Dep't of Educ., to Colleagues (Oct. 26,
2010), https://www.ed.gov /about /offices/ list/ocr/letters/colleague-
201001O.pdf.
\36\ See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982)
(holding that a private high school for troubled students need not
observe First Amendment rights of a teacher fired for criticizing
school officials).
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The First Amendment firmly protects the right to receive
information from all manner of sources, from controversial speakers to
books and pamphlets.\37\ No matter how repugnant one may find a
speaker's views, as long as a college has a policy of allowing student
groups to invite people from outside their campus to speak, college
administrators cannot pick and choose based on the views the speaker
holds.\38\ This is why Middlebury College's student chapter of the
conservative American Enterprise Institute (AEI) had a right to invite
Charles Murray to speak to them on campus.\39\ It is why neither other
students nor college administrators should be allowed to stop someone
from speaking merely because they dislike the speaker's ideas.\40\
---------------------------------------------------------------------------
\37\ See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969)
(internal citations omitted) (``It is now well established that the
Constitution protects the right to receive information and ideas . . .
. This right to receive information and ideas, regardless of their
social worth is fundamental to our free society.'').
\38\ Widmar v. Vincent, 454 U.S. 263, 277 (1981) (``Having created
a forum generally open to student groups, the University seeks to
enforce a content-based exclusion of religious speech. Its exclusionary
policy violates the fundamental principle that a state regulation of
speech should be content-neutral, and the University is unable to
justify this violation under applicable constitutional standards.'').
\39\ See Taylor Gee, How the Middlebury Riot Really Went Down,
Politico, May 28, 2017, http://www. politico .com/magazine/story/20 17
/05/28/bow- donald-trump-caused-the-middlebury-melee-215195.
\40\ See Healy v. James, 408 U.S. 169, 187-88 (1972) (``Whether
petitioners did in fact advocate a philosophy of 'destruction' thus
becomes immaterial. The College, acting here as the instrumentality of
the state, may not restrict speech or association simply because it
finds the views expressed by any group to be abhorrent.'').
---------------------------------------------------------------------------
When controversial speakers like Richard Spencer come to college
campuses without the invitation of a student group, they have the same
right as anyone else to use a public space to promote their message: if
a school allows those outside its community to use or rent a space on
campus, then any group or speaker has just as much of a right to use
that space as anyone else.\41\
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\41\ Good News Club v. Milford Cent. Sch., 533 U.S. 98, 108-09,
112-13 (2001) (``[The school] has opened its limited public forum to
activities that serve a variety of purposes . . . . [It] engaged in
viewpoint discrimination when it excluded the [religious] Club from the
afterschool forum.'').
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In the Auburn case, the court stated that the University presented
no evidence that Spencer's speech was ``likely to incite or produce
imminent lawless action.''\42\ The court also emphasized that the
University could not cancel Spencer's speech for fear that protestors
would object violently to his message. The court quoted a Supreme Court
case stating that ``[l]isteners' reaction to speech is not a content-
neutral basis for regulation.''\43\ The court also noted that the
University was prepared to provide security and that Spencer had
provided insurance against damage and paid for extra security.\44\
After a preliminary injunction was entered against the University, it
had to pay $29,000 in attorneys' fees to the lawyer for Spencer's
organizer.\45\
---------------------------------------------------------------------------
\42\ Prelim. Inj., Padgett v. Auburn Univ., supra note 28, at 2.
\43\ Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 135 (
1992).
\44\ Prelim. lnj., Padgett v. Auburn Univ., supra note 28, at 3.
\45\ Jay Reeves, Auburn to Pay $29K for Trying to Block
Controversial Speaker Richard Spencer, Montgomery Advertiser, May 16,
2017, http://www.montgomeryadvertiser.com/ story/news/2017 /05/16/
auburn-pay-29-k-trying- blockcontroversial- speaker- richard-spencer/
32466100 l/.
---------------------------------------------------------------------------
Richard Spencer is a wealthy individual. Most controversial
speakers will not be able to afford the cost of extra security and, in
any event, the law is decidedly against imposing the cost of security
on speakers to control those who may violently protest their
messages.\46\ Were the law otherwise, protestors could raise security
costs to such a degree that they would amount to a classic ``heckler's
veto.'' This leaves us, as Professor Erwin Chemerinsky, a staunch First
Amendment advocate, has pointed out, with a dilemma.
---------------------------------------------------------------------------
\46\ See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. at
136-37.
At what point can a University say that it cannot afford the
necessary security precautions and therefore must cancel a
speaker because public safety cannot be assured? The law
---------------------------------------------------------------------------
provides no clear answer to this question.
Yet, it is a very real and difficult issue. If [Ben] Shapiro
[another controversial speaker] and Yiannopolous and others
like them announced they were coming every week, no campus
could possibly afford it. Never should anyone be prevented from
speaking because of his or her views, but there must be a point
at which a campus can say the financial bill is just too high.
The law needs to develop in this area to provide guidance to
campus administrators. \47\
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\47\ Erwin Cbemerinsky, Why UC Berkeley Was Right Not to Ban Milo,
and Other Lessons from Free Speech Week, The Sacramento Bee, Oct. 3,
2017, http://www.sacbee.com/opinion/californiaforum/article
176680106.html.
Texas A&M University recently instituted a rule that will require
all campus speakers to be sponsored by an organization or person
affiliated with the University. Such a rule would prevent strangers to
the University, such as the organizer for Spencer's speaking tour, to
rent a University venue. ``If the University is going to incur security
and overtime costs associated with controversial speakers,'' a Texas
A&M spokesperson said, ``at least it will be for its own
students.''\48\
---------------------------------------------------------------------------
\48\ Christine Hauser, Campuses Grapple with Balancing Free Speech
and Security After Protests, N.Y. Times, Mar. 29, 2017, https://
www.nytimes.com /2017/03/29/us/ texas-aandm- speaking-policy-
richardspencer.html.
---------------------------------------------------------------------------
In the SPLC' s student campus guide, we emphasize the critical
importance of the First Amendment. ``Neither other students nor
administrators,'' we explain, ``can stop someone from speaking merely
because they dislike the speaker's ideas.'' We urge students ``to
deprive the speaker of the thing he or she wants most--a spectacle.''
Alt-right personalities know their cause is helped by news
footage of large jeering crowds, heated confrontations and
outright violence at their events. It allows them to play the
victim and gives them a larger platform for their racist
message. Denying an alt-right speaker of such a spectacle is
the worst insult they can endure.
While there's nothing wrong with peaceful student protests
against a hateful ideology, it's best to draw attention to hope
instead. Hold an alternative event_away from the alt-right
event_to highlight your campus's commitment to inclusion and
our nation's democratic values.\49\
---------------------------------------------------------------------------
\49\ See supra note I.
If students choose to protest, we urge them to be peaceful. We also
recognize that ridicule and mockery, when used peacefully, may be
effective tactics ``to disarm protesters who espouse bigotry and white
supremacy.'' \50\
---------------------------------------------------------------------------
\50\ Tina Rosenberg, Neo-Nazis in Your Streets? Send in the (Coup
Clutz) Clowns, N.Y. Times, Sept. 6, 2017, https://www.nytimes.com/2017
/09/06/opinion/comedy-protest-taxes-nazis.html.
College Administrators and Public Officials, Including the
President, Should Speak Out against White Nationalism and in Support of
the First Amendment; the President Also Should Heed Congress's Call to
---------------------------------------------------------------------------
Address the Growth of Hate Groups
Although public colleges and universities cannot ban those invited
to campus by student groups or forbid speakers whose messages they
abhor from using otherwise publicly available facilities, nothing in
the First Amendment requires public colleges to respond neutrally to
these speakers.\51\ As the Supreme Court recently affirmed, ``[W]hen
the government speaks it is entitled to promote a program, to espouse a
policy, or to takea position. In doing so, it represents its citizens
and it carries out its duties on their behalf.'' \52\ Colleges and
universities may not censor speakers like Richard Spencer, but they can
censure them.
---------------------------------------------------------------------------
\51\ Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550, 553 (2005)
(``[T)he Government's own speech .. . is exempt from First Amendment
scrutiny.''). But see Pleasant Grove City v. Summum, 555 U.S. 460, 468
(2009) (``[G]overnment speech must comport with the Establishment
Clause.'').
\52\ Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135
S. Ct. 2239, 2246 (2015).
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Many college presidents have issued forceful statements denouncing
the messages of racist speakers and affirming their commitment to
maintaining welcoming and inclusive campuses. Often, they have coupled
such statements with affirmations of their school's commitment to the
First Amendment as well. The statement issued by Michael Young, the
president of Texas A&M University, is a good example.\53\
---------------------------------------------------------------------------
\53\ ``Aggies United'' Event Planned for Dec. 6 at Kyle Field (Nov.
29, 2016), http://president.tamu.edu/messages/aggies-united.html.
---------------------------------------------------------------------------
Freedom of speech is a First Amendment right and a core value
of this University, no matter how odious the views may be.
Outrage and indignation are emotions understandably running
high; I share these sentiments. At the same time, I am also
truly heartened by the clear message that the Aggie community
is sending in reaction to this intrusion--the firm resolve to
speak up in opposition to these views, the resounding
affirmation that they do not represent the Aggie values we
espouse and to which we aspire, and the call to action to
reject these views.
Both aspects of such statements are important. By denouncing the
racist messages of speakers like Spencer and affirming their commitment
to maintaining welcoming and inclusive campuses, University presidents
distance their schools from racism and reassure students who may be
troubled by the presence of incendiary speakers on campus. By affirming
their commitment to the First Amendment, University presidents take
advantage of a teachable moment at a time when there is widespread
confusion among students about the constitutional protections afforded
to freedom of expression.\54\ It is important, in my view, that
statements such as that issued by Mr. Young come from University
presidents or other high-ranking officials, rather than from a
disembodied institutional office.\55\ Actions, of course, speak louder
than words.
---------------------------------------------------------------------------
\54\ Views among College Students regarding the First Amendment:
Results from a New Survey (Sept. 18, 2017), https://www.brookings.edu/
blog/fixgov/2017/09/ 18/views-among- college- students- regarding-the-
first- amendment-results-from-a-new-survey/.
\55\ The statement that Auburn University issued on the eve of
Richard Spencer's appearance on campus is an example of an ineffective
one coming from an institutional voice rather than from the university
president. Auburn University Statement on Richard Spencer, AUBURN UNN.
(Apr. 12, 2017), http://ocm.auburn. edu/newsroom/news articles/2017 /
04/aubum-university-statement-on-richard-spencer.htm.
---------------------------------------------------------------------------
Ironically, the Goldwater Institute is promoting model legislation
that, in the name of protecting free speech on state college campuses,
actually could circumscribe the ability of college presidents to speak
out against racism.\56\ The model legislation provides that state
colleges and universities ``shall strive to remain neutral, as an
institution, on the public controversies of the day.''\57\ Although the
Goldwater Institute states that this section of its model legislation
is ``aspirational,'' it also states that ``[d]espite the aspirational
language,'' certain policies ``would be a fairly straightforward
violation of the principle of institutional neutrality.''\58\ The model
legislation does not define the term ``public controversies of the
day,'' so one is left to wonder.
---------------------------------------------------------------------------
\56\ Campus Free Speech: A Legislative Proposal (2017), http://
goldwaterinstitute.org/wpcontent/ uploads/cms page media/2017 f2/2fX
Campus %20Free %20Speech %20Paper.pdf.
\57\ Id. at 20.
\58\ Id. at 9 (emphasis added).
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Fortunately, Congress has not remained neutral. In the joint
resolution it unanimously passed after the shocking incidents in
Charlottesville in August, it unequivocally ``reject[ed] White
nationalism, White supremacy, and neo-Nazism as hateful expressions
that are contradictory to the values that define the people of the
United States.'' Congress urged the President to likewise ``speak out
against hate groups that espouse racism, extremism, xenophobia, anti-
semitism, and White supremacy.''\59\
---------------------------------------------------------------------------
\59\ https://www.Congress.gov/ 115/bills/sjres49/BILLS-
115sjres49enr.pdf.
---------------------------------------------------------------------------
Unfortunately, the President's post-Charlottesville statements have
appeared equivocal at times.\60\ He also bas sent mixed messages when
it comes to his support of the first Amendment.\61\ Given his bully
pulpit, the President should speak more clearly, more forcefully, and
more often about our country's commitment to the constitutional values
embodied in both the First and Fourteenth Amendments. He also should
take responsibility for the fact that he has ``unearthed some demons,''
to use Representative Sanford's words again,\62\ and heed Congress's
call to ``use all resources available'' to his administration to
``address the growing prevalence
of . . . hate groups in the United States.''\63\
---------------------------------------------------------------------------
\60\ Hayes: Where Are Trump's `Very Fine People'? (Aug. 17, 2017),
http://www.weeklystandard.com/hayes-where-are-trumps-very-fine-people/
article/2009330; Trump Gives White Supremacists an Unequivocal Boost
(Aug. 15, 2017), https://www.nytimes.com/2017 /08/15/us/politics/trump-
charlottesville-white-nationalists.html? r=O.
\61\ A Brief History of Donald Trump's Mixed Messages on Freedom of
Speech (Sept. 29, 2017), https://www.washingtonpost.com/ politics/a-
brief-history-of -donald-trumps- mixed-messages-on-freedom-of speech/
2017/09/28/ dd44160c-a3b6-1 I e7-ade 1-76d061 d.56efa storv.html?utm
term=.2be8d2b6dc07.
\62\ See supra note 8.
\63\ S.J. Res 49, I 15th Cong. (2017) (enacted).
______
The Chairman. Thank you, Mr. Cohen. Thank you for coming.
Dr. Stanger, welcome.
STATEMENT OF DR. ALLISON STANGER
Dr. Stanger. Thank you. Chairman Alexander, Ranking Member
Murray, and distinguished Members of the U.S. Senate Committee
on Health, Education, Labor, and Pensions, it is an honor and
privilege to share some thoughts with you here today.
Last February, several of my students asked me to moderate
a talk with the libertarian scholar, Charles Murray. Dr. Murray
was drowned out by students who never let him speak. We were
forced to retreat to another location to live stream our
conversation, and he and I were intimidated and physically
assaulted while trying to leave campus.
Why did this happen in the United States of America on a
bucolic college campus in the green mountains of Vermont? I
think there are three reasons. First, any liberal arts college
campus is something of a bubble, but Middlebury College is in
the State of Vermont, making it a bubble within a bubble. In
that context, Charles Murray was a lightning rod that he might
not otherwise have been.
Second, a minority of Middlebury faculty cheered on the
protest and did not encourage their students to read Charles
Murray or listen to him first before drawing their own
conclusions about his work or his character. Some faculty
acknowledged publicly that they had not read a thing Charles
Murray had written but still knew everything they needed to
know about him from what the Southern Poverty Law Center
website had to say about him.
Third, some students believed that shutting down speech was
a means to social justice. Some Middlebury faculty shared that
view, thereby encouraging radical action.
We can and must do better. We need to teach students to
think for themselves so they are equipped for democratic
citizenship and resisting peer pressure in their pursuit of
self-knowledge, truth, and the good. Viewpoint diversity is
thus an asset for any college or University. Nothing less than
liberal education and the possibility of reasoned political
debate is at stake in the debate over campus censorship.
Universities exist to promote an arena in which ideas can
be exchanged freely, not to render value judgments on the ideas
themselves. Free expression is also the means to greater
inclusion and diversity. Reducing group think in the academy is
thus a necessary condition, in my view, for reducing it in the
electorate. To quote the Chinese dissident, Liu Xiaobo, in his
Nobel Peace Prize lecture, ``Freedom of expression is the
foundation of human rights, the source of humanity, and the
mother of truth. To strangle freedom of speech is to trample on
human rights, stifle humanity, and suppress truth.''
Our constitutional democracy will depend on whether
Americans can relearn how to engage civilly with one another.
Our national security also depends on it. America's enemies all
seek to divide us. We must not allow them to do so. The
challenge before all of us, therefore, is to channel our
emotions into thinking about how we might better work together
as Americans on what Lin-Manuel Miranda's Alexander Hamilton
calls ``America, you great unfinished symphony.''
There is important work for Democrats and Republicans to do
together. Let's get to it.
Thank you for your attention, and I welcome your questions.
[The prepared statement of Dr. Stanger follows:]
Prepared Statement of Allison Stanger
Last February, several of my students asked me to moderate a talk
with the libertarian scholar Charles Murray. Dr. Murray was drowned out
by students who never let him speak, we were forced to retreat to
another location to live stream our conversation, and he and I were
intimidated and physically assaulted while trying to leave campus.
Why did this happen in the United States of America, on a bucolic
college campus in the Green Mountains of Vermont? I think there are
three reasons.
1. Any liberal arts college campus is something of a bubble,
but Middlebury College is in the State of Vermont, making it a
bubble within a bubble. In that context, Charles Murray was a
lightning rod that he might not otherwise have been.
2. A minority of Middlebury faculty cheered on the protests,
and did not encourage their students to read Charles Murray or
listen to him first before drawing their own conclusions about
his work or his character. Some faculty acknowledged publicly
that they had not read a thing Charles Murray has written, but
still knew everything they need to know from what the Southern
Poverty Law Center (SPLC) website had to say about him.
3. Some students believed that shutting down speech was a means
to social justice; some Middlebury professors shared that view,
thereby encouraging radical action.
My aim is to teach students to think for themselves so they are
equipped for democratic citizenship and resisting peer pressure in
their pursuit of self-knowledge, truth, and the good. Viewpoint
diversity is thus an asset for any institution of higher learning.
Nothing less than liberal education and the possibility of reasoned
political debate is at stake in the debate over campus censorship.
Universities exist to promote an arena in which ideas can be exchanged
freely, not to render value judgments on the ideas themselves. Free
expression is also the means to greater diversity and inclusivity.
Reducing group think in the academy is thus a necessary condition for
reducing it in the electorate.
To quote the Chinese dissident Liu Xiaobo's Nobel lecture,
``Freedom of expression is the foundation of human rights, the source
of humanity, and the mother of truth. To strangle freedom of speech is
to trample on human rights, stifle humanity, and suppress truth.''
Our constitutional democracy will depend on whether Americans can
relearn how to engage civilly with one another. Our national security
also depends on it. America's enemies all seek to divide us. We must
not allow them to do so. The challenge before all of us, therefore, is
to channel our emotions into thinking about how we might better work
together as Americans on what Lin-Manuel Miranda's Alexander Hamilton
calls ``America, you great unfinished symphony.'' There is important
work for Democrats and Republicans to do together. Let's get to it.
______
summary of allison stanger
Chairman Alexander, Ranking Member Murray, and distinguished
Members of the U.S. Senate Committee on Health, Education, Labor, and
Pensions, you have invited me to testify about my own personal
experiences with free speech issues on college campuses and what I have
learned from them. It is an honor and a privilege to share some
thoughts with you here today.
Last February, several of my students asked me to moderate a talk
with the libertarian scholar Charles Murray and another set of students
asked me to moderate a talk with Edward Snowden. As I wrote in the New
York Times, this was a chance to demonstrate a commitment to the free
and fair exchange of views in my classroom.\1\ While Mr. Snowden's
presentation went forward without a problem, Dr. Murray's was drowned
out by students who never let him speak, we were forced to retreat to
another location to live stream our conversation, and he and I were
intimidated and physically assaulted while trying to leave campus.
---------------------------------------------------------------------------
\1\ https://www.nytimes.com/2017 /03/13/opinion/understanding-the-
angry-mob-that-gave-me-aconcussion. htrnl? r=0
---------------------------------------------------------------------------
Why did this happen in the United States of America, on a bucolic
college campus in the Green Mountains of Vermont? I think there are
three reasons.
First of all, any liberal arts college campus is something of a
bubble, but Middlebury College is in the state of Vermont, making it a
bubble within a bubble. We are the state that elected Senator Bernie
Sanders, and we had the second smallest percentage of Trump voters
(30.3%) in the country.\2\ In that context, Charles Murray was a
lightning rod that he might not otherwise have been.
---------------------------------------------------------------------------
\2\ https://www.nytimes.com/elections/results/president.
---------------------------------------------------------------------------
The second reason I wound up injured follows from the behavior of a
small minority of Middlebury faculty, who cheered on the protests,
which is their right. However, these faculty also did not encourage
their students to read Charles Murray or listen to him first before
drawing their own conclusions about his work or his character, which
was their obligation as educators. There are Members of the Middlebury
faculty who acknowledged publicly that they had not read a thing
Charles Murray has written, but still knew everything they need to know
from what the Southern Poverty Law Center (SPLC) website had to say
about him.\3\ Just because everybody is saying something about some
person or group obviously does not make it true. Exhibit A is 1938 Nazi
Germany. Our responsibility as educators is to encourage students to
read and think for themselves, not to outsource their thinking to
others. The SPLC's blurred lines between advocacy and information also
must bear a portion of the blame for what transpired.
---------------------------------------------------------------------------
\3\https://www.nytimes.com/2017/04/03/education/edlife/middleburv-
divided-campus-charlesmurray- free-speech.html.
---------------------------------------------------------------------------
The third reason events took place as they did on the Middlebury
campus is that some students believed that shutting down speech was a
means to social justice; some Middlebury professors shared that view,
thereby encouraging radical action. It is important to realize that
everyone inside the lecture hall was a member of the Middlebury
community, as IDs were checked at the door. Outside agitators were
among those protesting outside. Some Members of the Middlebury
community would like to draw a distinction between what happened inside
the lecture hall and what happened outside it, where I was injured.
They are mistaken. Shutting down speech is always an invitation to
violence. There was a direct line between the fighting words on campus,
the suppression of speech and the angry mob that gave me a concussion.
All violence is a breakdown of communication.
I met JD Vance, author of Hillbilly Elegy, last week, and he asked
me whether what happened to me was a one-off thing related to a
particular moment in time or an expression of something larger. It's a
good question. I responded that it is both. The overreaction was very
much rooted in the bubble within a bubble that is Middlebury College,
but it is also a reaction to larger trends that have long been in
motion having to do with growing inequities in our country that
correlate with unequal K-12 educational opportunities. Middlebury
successfully recruits a diverse class of the best and the brightest
from all corners of the country and world, but some students of color
who arrive on campus from urban areas are confronted for the first time
with the challenges of living in one of the whitest states in the
union. At Middlebury, they encounter unfathomable privilege, which is
sometimes accompanied by a sense of entitlement. Since our Constitution
once counted slaves as 3/5 of a human being, when vast inequality
aligns with racial difference, it breeds legitimate resentment. None of
this is to excuse the shutting down of speech and the violence to which
it led, but it is to point out that the emotions the protesters brought
to the event were real and justified. There is still much equality work
to be done in our country.
Lest I be misunderstood, I want to make it clear that we are
talking about a small minority of students and faculty who applauded
censorship. But they were loud and vocal, just as those of us were who
stood for freedom of expression. A fundamental misunderstanding arose.
Instead of seeing freedom of speech as the bedrock of both liberal
education and American constitutional democracy, the ground rules
through which greater diversity and inclusivity have been and can still
be achieved, the opponents of having Charles Murray speak on campus saw
a tradeoff between freedom of speech, on the one hand, and inclusivity,
on the other hand. Nothing could be further from the truth, since free
expression is the foundational means to greater diversity. The idea
that there was a tradeoff between free speech and inclusivity, however,
initially carried the day in our campus discourse. It could do so only
by ignoring both American history and the empirical world beyond the
Green Mountains, which provide inescapable evidence that it is
precisely the marginalized who suffer most when civil liberties are
compromised. The view that inclusivity and free speech are mutually
exclusive had and will continue to have popular appeal, since it seems
to embrace moderation defined as middle ground between two extremes. It
comforted those pained by the conflict they were witnessing, both on
campus and beyond, because it meant that one didn't have to choose a
side.
There were quite a few brave souls, however, who saw the foundation
of the University under challenge and spoke out publicly, including
Middlebury's president, Laurie Patton.\4\ They understood that academic
freedom is a foundation for both knowledge and human excellence, and
that it matters what is happening in universities, because democracy
and liberal education are intertwined. Two of my colleagues organized a
Principles of Free Expression petition that garnered over 100
signatures from Middlebury faculty and was published in the Wall Street
Journal in March. There were three general patterns among the
signatories:
---------------------------------------------------------------------------
\4\ https;//www.wsj.com/articles/the-right-way-to-protect-free-
speech-on-campus-1497019583
1. Many supporters had studied or experienced intellectual life
under an authoritarian or totalitarian regime.
2. Others had lived in American red states and had loved ones
with whom they disagreed politically.
3. Quite a few were older rather than younger.
I myself happen to fall into all three of these categories. I
should also add that professors from the STEM fields, religion, and
political philosophy were disproportionately represented.
In general, the signatories understood the critical importance of
being able to agree to disagree, for the sake of the community, free
inquiry, and democracy itself. It was shocking to discover that I had
colleagues who did not share my understanding of the academy's and
America's core values.
Part of the reason I was shocked by what happened at Middlebury is
that I do not encounter captive minds in my classroom. I have been able
to shape a learning environment where ideas can freely collide. My
students know that I want them to speak their mind without worrying
about whether or not what they say might be labeled offensive. If
anybody winds up offended by what another student has to say (this
rarely happens), they know they must apologize, and we can then move
on. Students must feel free to speak their minds, make mistakes, and
learn from them if they are to develop both intellectually and
emotionally. They must learn to challenge speech with more speech, to
think for themselves rather than relying on somebody else to tell them
what to think or do, as well as to reflect on how their words and
actions affect others. While students must always first demonstrate
that they understand an argument on its own terms, I make sure they
know that they are free to disagree, both with a particular text and
with me. I will grade them on the strength of their argument and the
evidence they muster in support of it, not the conclusions they may
reach. With these maxims, students not only write better papers, they
also learn skills that arm them to fight injustice in all its
manifestations.
Because cultivating open-mindedness is so important for learning, I
am always on the lookout for challenging alternative viewpoints, as
they provide an ideal catalyst for intellectual growth. As a graduate
student in the Harvard Government department, civil conversations with
conservative professors with whom I disagreed changed my life by
forcing me to examine my own biases. In so doing, I came to understand
the difference between emotion and reason, both of which are important
for human flourishing. Part of the reason I agreed to engage with
Charles Murray is precisely because I want my students to benefit from
a comparable educational experience. I want them to learn to think for
themselves so they are capable of standing on principle and resisting
peer pressure in their pursuit of self-knowledge, truth, and the good.
Viewpoint diversity is an asset for any institution of higher
education.
Nothing less than liberal education and the possibility of reasoned
political debate is at stake in the debate over campus censorship. The
very values that animated and inspired the founders of our
constitutional order are being challenged when protesters chant
``Liberalism is white supremacy'' and ''the revolution will not uphold
the Constitution.'' As a professor of comparative and international
politics, I can tell you with complete confidence that those who
embrace such logic are misinformed about their relative good fortune in
being born in the United States. Because they have seen what happens to
civil liberties under authoritarian regimes, African students at
Middlebury College tend to view recent events through a different prism
than African-American students. We have a civic education crisis in our
country today, and it originates in K-12 education.\5\
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\5\ https://www.washingtonpost.com/news/powemost/paloma/daily 2/
2017110/23/daily 202-thecorrosion- of-support-for-first-amendment-
principles-started-before-trump-he-s-superchargedit/ 59ed49b
130fb045cba000926/?utm term= .eba3e92844c5&wpisrc=nl daily202&wpmm=. 1
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Looking to the future, what have I learned over the course of the
past 7 months? I have three conjectures for your consideration.
First, while the entire University cannot and should not be a safe
space, there must be some safe enclaves on campus to foster
inclusivity. That commitment, however, must not undermine social
interaction across socioeconomic and racial/gender divides. That
commitment must not come at the expense of liberal education. Sports
teams can function as safe spaces for Team Members and should also be
pushed to integrate with the larger community whenever possible. Free
discussion in a diverse classroom can help make that happen.
Second, if we are to avoid the implicit endorsement of real
violence, such as what happened at Middlebury, institutions of higher
learning cannot be in the business of policing symbolic violence.
Calling speech symbolic violence, unfortunately, seems to justify
physical violence as a reciprocal response. Many protesters rightfully
pointed out that Charles Murray's research and thinking have been
weaponized. Fair enough, but Pierre Bourdieu's, Jean-Francois
Lyotard's, and Kimberle Crenshaw's writings have also been weaponized.
What justifies shutting down one and not the other besides ideology?
Universities exist to promote an arena in which ideas can be exchanged
freely, not to render value judgments on the ideas themselves. There
are larger implications to getting this right. Reducing group think in
the academy is a necessary condition for reducing it in the electorate.
Third, we need a Treaty of Westphalia between departments and
programs on our college campuses.\6\ At Middlebury, a student club
invited Charles Murray to speak, and the political science department
co-sponsored the event. In the campus outcry that ensued, the
Sociology/Anthropology department sought to rally the community to
censor the Political Science department by demanding that we withdraw
our co-sponsorship. In so doing, they abandoned long established norms
of tolerance and open-mindedness, as well as collegiality. Universities
must denounce efforts by one department to sanction another in this
way, even when it is done with the best of intentions. Attempted
censorship is a violation of academic freedom.
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\6\ The 1648 Treaty of Westphalia ended the wars of religion in
Europe by upholding Cuius regio,eius religio (Whose realm, his
religion), meaning that the ruler of a sovereign state could dictate
the religion of those ruled.
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Allow me to conclude with some wise words from the Chinese
dissident Liu Xiaobo, who won the 2010 Nobel Peace Prize while
imprisoned for his commitment to democratic values and who died this
summer. For his Nobel lecture, he penned the following memorable lines:
``Freedom of expression is the foundation of human rights, the
source of humanity, and the mother of truth. To strangle freedom of
speech is to trample on human rights, stifle humanity, and suppress
truth.''\7\
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\7\ https://www.nytimes.com/2017/07/13/world/asia/liu-xiaobo-china-
nobel-writings.html
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There is a dangerous idea that has recently taken hold on the
American left that one must fight fire with fire. As a result, we now
have an Alt-Left and an Alt-Right in the US. In resisting what they see
as extremism, they embrace extremist tactics. Democracy and reasoned
debate have been and will be the main casualties, since the extreme
left and extreme right are rebelling against liberalism itself.
Upholding freedom of expression protects all of us, because it gives
individuals ways to dissent without resorting to violence.
More broadly, our constitutional democracy will depend on whether
Americans can relearn how to engage civilly with one another. Our
national security also depends on it. America's enemies all seek to
divide us. We must not allow them to do so.
The challenge before all of us, therefore, is to channel our
emotions into thinking about how we might better work together as
Americans on what Lin-Manuel Miranda's Alexander
Hamilton calls ``America, you great unfinished symphony.''\8\
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\8\ Lin-Manuel Miranda and Jeremy McCarter, Hamilton: The
Revolution (Hachette Book Group, 2016), p. 273.
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There is important work for Democrats and Republicans to do
together. Let's get to it.
Thank you for your attention, and I welcome your questions.
______
The Chairman. Thank you, Dr. Stanger.
Thanks to all four witnesses. I wish every Member of the
Senate could have heard that. We're grateful for your coming.
As to civic education, the lowest score on the advanced
placement test we have in the United States today for high
school students is not in math and science. It's in American
history. I think that goes to that point.
We'll now begin a round of 5-minute questions.
Dr. Zimmer and Ms. Strossen, let me start with you. Some
lawmakers have suggested that we enact a free speech mandate,
which means that students could say whatever they want to say
on campus. Some other lawmakers have suggested that we enact a
speech code, which means there are some things you can't say on
campus.
What do you think we should do, we Members of the Congress?
Should we enact a free speech mandate for the 6,000 colleges
and universities we have or a free speech code, or should we
leave that to the presidents, faculty members, universities,
and students to interpret the Constitution of the United States
on what the First Amendment means?
Dr. Zimmer.
Dr. Zimmer. This is an important question, and I would be
loathe to see at this point any greater Federal regulation
imposed upon private colleges and universities than already
exist. I think, ultimately, the questions are deeply cultural.
They're going to have to be solved by those on campuses.
They're not going to be improved by having a debate about which
end of the spectrum should apply and what additional type of
regulation, but it's going to be solved and enhanced,
ultimately, by the very process of free expression and
argumentation on college campuses.
Seeing that type of argument evolving and emerging now, I
think, is a healthy thing. I think the situation is actually
better because people are talking about it, and I think that
seeing the culture evolve through discussion on campuses is the
proper way to proceed.
The Chairman. Ms. Strossen, should Congress enact a free
speech mandate or a free speech code? While you're at it, why
don't you comment--and I've just got 5 minutes--so why don't
you comment on your membership, which, I believe, in a group
called the Heterodox Academy, a coalition of faculty members
who design to address a slightly different problem to make sure
that there's a genuine diversity of viewpoint on campus.
Ms. Strossen. Absolutely. I would say, with all due
respect, Chairman Alexander, with respect to public
universities, there is a free speech mandate. It is the First
Amendment, and all of the juris prudence associated with the
First Amendment, which the Supreme Court has very firmly,
across the spectrum of justice, has said applies fully on
public campuses.
As to private universities, I would defend their First
Amendment rights to make their own determinations about whom
they admit as part of their academic freedom. For example, if
it's a religiously oriented University, it should be free to
prefer certain religious views and not allow others.
The Chairman. Well, I agree with you. But what about a free
speech code? Do you think Congress should enact a free speech
code?
Ms. Strossen. I think you can tell that I would not, both
because it would violate the most fundamental First Amendment
principle, what the Supreme Court has called the bedrock of our
First Amendment, viewpoint neutrality, that government may
never pick and choose which particular viewpoints to favor or
to disapprove, no matter how deeply despised certain views
might be.
That brings me to the other point, Chairman Alexander, and
I agree here with President Zimmer that we will depend on
education and the acculturation that comes through education to
stimulate students' critical thinking and their respect for
freedom of speech. I think--and this is part of the mission,
central mission, of Heterodox Academy, recognizing that that is
going to happen only if students are exposed to multiple points
of view, including views that they deeply despise, so that they
can learn to effectively respond to it.
The Chairman. Ms. Stanger, I only have 30 seconds if you
want to add to that.
Dr. Stanger. Yes. I would just say that I agree with
President Zimmer that it would be a bad idea for Congress to
legislate in that fashion. However, I would think that we can
all do our part as Senators, as faculty, as students to model
the behavior we want to see, and I think that will get us all a
step forward to greater--better civil discourse.
Faculty can also support viewpoint diversity and realize
its importance in education. Part of the reason I invited
Charles Murray to campus is precisely because I wanted my own
students to have the chance to interact with conservative
thinkers, like I did myself in the Harvard Government
Department.
The Chairman. Thank you.
Senator Murray.
Senator Murray. Thank you very much. Thank you to all of
our witnesses today. I really appreciate it.
Mr. Cohen, I wanted to go back to something you started
your testimony with. You said, quote, ``All of this debate is
taking place against the backdrop of increased activity by a
white nationalist movement that has been emboldened by
President Trump's rhetoric.'' Can you expand for us on some of
the trends that you and your colleagues have seen as a result
of that, and an example or two would be helpful.
Mr. Cohen. In 2013 and 2014, we saw a decrease in the
number of hardcore organized hate groups in our country. In
2015 and 2016, we saw an increase in those groups. It was a
period that coincided with the Presidential campaign. An
unusual thing happened during the Presidential campaign. White
supremacists openly endorsed President Trump, whether he wanted
them to or not. It's unusual because, typically, it's a pox on
both their homes. I think both parties are irredeemably
corrupt. Not this time. They celebrated his victory. They feel,
rightly or wrongly, that they have the ear of the president, or
especially when they had Mr. Bannon there.
I hope he sorely disappoints them. I hope he changes his
rhetoric. But that's the state-of-the-art now, and that is why
we are seeing this targeting of college campuses by an
energized white supremacist movement.
Senator Murray. You know, no one person has the market on
free speech. It's a constitutional right. Every person enjoys
it, including a school administrator. I know the Southern
Poverty Law Center works closely with colleges and universities
around the country to promote best practices.
Mr. Cohen, I wanted to ask you, for a college president or
a University administrator who might be watching this hearing,
I have some questions for you. When a speaker spreads a message
of hate or intolerance on campus, should the leadership of the
University exercise their free speech right to provide context
for students and to clarify the University's values?
Mr. Cohen. I think it's essential that that happens. When
someone like Milo Yiannopoulos is invited to campus, and he's
invited by, as happens many times, the Young Republican clubs,
the students are like, ``My heavens. What kind of school am I
going to where my colleagues are inviting this incendiary
personality to the school?'' I think it's really quite
important for University presidents in those situations to
separate themselves from the messages of incendiary racist
speakers like Mr. Spencer and say, ``Our college doesn't
believe in that. Our college is here to support you.''
I know that Dr. Zimmer, in his testimony, made the same
point, that it's critically important for colleges and
universities to appropriately support students who have been
traditionally marginalized and may feel marginalized by the
presence of racist speakers on their campuses.
Senator Murray. Well, second, if a speaker is coming to
campus, and the administration knows students will want to
exercise their right to express disagreement, what should
colleges do then? Should they respect the rights of the
speaker, respect the right for that speaker to be heard,
respect the rights of the students to express their
disagreement? What do they do then?
Mr. Cohen. All of the above. They have to respect the right
of the speakers, and they have to respect the rights of the
students who wish to protest.
Senator Murray. How do they do that? What are the best
practices?
Mr. Cohen. Well, what we try to do with--what we try to
tell students and what we try to tell administrators is to
organize an alternative event. If you have kind of a racist
speaker coming to campus, don't give them the spectacle that he
or she wants. Organize a separate event where one can express
kind of the University's true values and values of our country.
We sometimes also suggest that when students learn that
there's going to be a racist speaker on campus, particularly
one who's been invited by a campus group, go try to persuade
them to disinvite the speaker. Try to persuade them that this
kind of speaker is only going to sow division on college
campuses. We can't force that, but we try to do things like
that, hold alternative events, stay away. Those seem like the
most important things to be done.
Senator Murray. Dr. Zimmer, I wanted to ask you--you heard
me talk about Taylor, who is sitting behind you there. She's
the survivor of a hate crime on campus. When I was talking with
her, I asked her how that made her feel. She said to me--and I
want to quote it--``I felt like I didn't belong on campus. I
felt like my voice was not wanted.''
She's not alone. In August, we saw a white supremacist
descend on the University of Virginia, surely making a lot more
students feel like Taylor did. Obviously, we need to protect
free speech. But I want to know what is a University's
responsibility in this situation? You lead the University of
Chicago. What should universities do to be making sure that
students, like Taylor and many others, feel like they belong
and their voice is wanted?
Dr. Zimmer. This is the question of diversity inclusion on
university campuses, a profound one. It's exceedingly important
not just to be reactive to a particular situation, but to take
a long, sustained, and purposeful approach to inclusion of
everybody who comes to campus, every student who's on campus,
independent of their background--a sense of inclusion and,
indeed, ownership of that environment.
I think that this is something--for example, at the
University of Chicago, we're certainly not alone in this and
pay an enormous amount of attention to it. There are many
programs that begin from the very beginning. I would say that
we, like most universities, are still working on how to do this
best. I would say places have developed good practices, but
there's still a lot of work to do here.
This cuts across a whole range of individuals who are a
minority sector for one reason or another. We have long lists
of issues in our history connected to racism, to anti-semitism,
to misogyny, to homophobia, and so on, and all these
individuals at various times because of various behaviors, both
of universities themselves and of the people on campus, can be
in a situation in which they are feeling excluded or not a full
participant, and it's very important that universities work on
this.
I would say, in the context of the topic here, that when
you say, ``what does inclusion mean,'' what it should mean is
inclusion in the best education that we can offer. That's why
students are on campus. This tension that gets articulated
between inclusion issues on one hand and free speech issues on
the other hand, I think, is honestly not the right line to
draw. It conflates things that are different, and what we want
is to be including all students and helping them learn that the
power of the education that they're going to have is going to
be enhanced and defined by ongoing open challenge.
Senator Murray. Thank you.
The Chairman. Thank you, Senator Murray.
Senator Young.
Statement of Senator Young
Senator Young. Well, thank you, Chairman.
Dr. Zimmer, former University of Chicago scholar and Nobel
Laureate Milton Friedman was once at one of his celebrated
public forums, and he was fielding tough questions from the
student audience, and one of the students asked him shouldn't
people, shouldn't his fellow citizens, be intelligent enough to
know the difference between deceit and truth. Milton Friedman
unequivocally said no, they should be intelligent enough to
know to choose among alternative purveyors of truth, which is
really what I've heard here today. They can discern truth from
falsity only if they hear a variety of opinions.
Then he cited the USSR, which then, of course, still
existed. He said so many in the USSR are enormously skeptical
of their government, but they only know one truth, or they
don't know the truth. They're only exposed to one opinion, and
that was by design, in large measure. It was the objective of
the USSR to stifle speech so that civil discourse, civil
society couldn't flourish, and that helped the regime stay in
power.
To the extent that the habits of mind that you mentioned,
things like the ability to challenge assumptions, synthesize
different views, and account for uncertainty, are not developed
by Americans, whether they're college students or don't happen
to go to college. How does this undermine our national unity
and handicap our collective capacity for self government?
Dr. Zimmer. Well, I think these skills are necessary for
leadership, for example, in all sorts of human endeavor, I
mean, in building human capacity to act thoughtfully, to
discern the implications of potential actions, to not act
simply but to act in what is inevitably a complex environment,
and understand various implications that will take place.
I think these are skills that apply to what I would say is
the full range of human endeavor, and the extent to which we
are, as a country, producing people who can approach this full
range of human endeavor with these types of skills, we will
flourish more. The extent to which we don't, we will flourish
less.
Senator Young. Ms. Strossen, in the interest of free
expression, I'd like to ask for more than one opinion. If you
could kindly address that question.
Ms. Strossen. I absolutely agree that what we are talking
about is vital not only for individuals liberty, but also for
education and for democracy, the anti-authoritarian values that
you talked about, Senator Young. We the people are the
Governors, with all due respect. We elect folks like you to
represent us, but you are accountable to us, you and other
government officials. How can we hold you accountable unless we
are able to express dissenting points of view? How can we feel
empowered to do that if we're going to universities where we
are indoctrinated in a single point of view?
Senator Young. What are the greatest barriers we face to
developing these important habits of mind, the ability to
differentiate or, in the best sense of the word, discriminate
between different views and opinions and truths, if you will?
Are they institutional in nature? Are they a result of a
combination of confirmation bias and how we now receive our
information?
We live in a different era, when we have access to more
opinions than ever. But, psychologically, so many of us are
hardwired not to receive multiple perspectives and opinions. In
my remaining minute, would one of you like to take this
question?
Mr. Cohen. If I could.
Senator Young. Yes, sir.
Mr. Cohen. I think it's quite critical to start at the
elementary school level to help students understand the point
of view of others, to help them feel safe in their own identity
but give them a mirror into other people's views, help them
understand that everyone has a perspective that's a valuable
thing to offer. We're really, through our work in the education
sphere, trying to help students become active citizens in the
diverse democracy that we live in, and I think that's a
responsibility at every grade, K through 12, because I think if
that occurs, the kinds of problems that we have seen on college
campuses would be diminished greatly.
Senator Young. Thank you.
The Chairman. Thank you, Senator Young.
Senator Bennet.
Statement of Senator Bennet
Senator Bennet. Thank you, Mr. Chairman. I'd like to start
by once again saying how much I appreciate your leadership and
the Ranking Member's leadership on this healthcare bill, and my
fervent hope that we will actually move forward on it.
I also want to thank you for an excellent panel today. This
has really been fantastic. Like you, I wish the whole Senate
could hear this.
Dr. Zimmer, I had the good fortune for the first time to be
at the University of Chicago two or 3 weeks ago, and I can tell
you your students were excellent. The questions that they
asked--basically, I had a town hall there--were phenomenal, and
I also came away with a strong sense that I could never be
admitted there.
[Laughter.]
Senator Bennet. Thomas Jefferson wrote during the
Constitutional Convention--of course, he wasn't there. He was
in Paris at the time. He wrote, ``The basis of our government
being the opinion of the people, the first object should be to
keep that right, and were it left to me to decide whether we
should have a government without newspapers or newspapers
without a government, I should not hesitate for a moment to
prefer the latter.''
In his second inaugural address, he said that the artillery
of the press, he described it, had been leveled against him.
But in the end, the answer to that was more speech, not less
speech. Today, we have a President who every day, day after
day, attacks the free press in America, calls leading
journalists in America fake news, attacks edited content,
attacks curated content, in favor of opinions that are rendered
on the Internet, that are not edited content, that are not
curated content.
I wondered, Dr. Zimmer, if I could start with you, what the
University of Chicago is doing to ensure that your students can
distinguish between what is edited content and the importance
of that and what is someone's opinion on the Internet.
Dr. Zimmer. Well, our entire education is, in fact, built
around the question of argumentation so that nothing is left
simply as a statement. In fact, somebody said to me the other
day they characterized the University of Chicago as a place
where you say, ``Good morning,'' and somebody asks you for
evidence of that.
[Laughter.]
Senator Bennet. I very much had that sense while I was
there.
Dr. Zimmer. I would say it's simply, again, this matter of
culture in which people do not take statements for granted, in
which you have to understand what assumptions other people are
making, what assumptions you are making, and it's simply an
ongoing process, and it's the nature of the education that we
offer.
Senator Bennet. I appreciate that, and I believe it's true,
and I'd ask the other panelists to talk a little bit about what
this wholesale attack on journalism in this country from the
President of the United States--what is the effect in your
institutions or among the students that you serve? Mr. Cohen,
you talked about the importance of elementary school students.
I'm having to have conversations--and I'm a former school
superintendent. Every time I have a conversation now with
middle school students or a high school student, we have to
discuss the importance of edited content and what it means to
write a paper now in high school or in middle school, when you
have a President who is not just disregarding, but attacking
the leading journalists in this country. Professor Strossen?
Ms. Strossen. Well, obviously, I defend his freedom of
speech to do that, and we all do.
Senator Bennet. As I do.
Ms. Strossen. I have to say, as an activist, I always see
the glass half full. The reaction that he is causing is, at
least, as much galvanizing opposition, as we've heard from some
eloquent statements from you and other members of this
Committee, and energizing people to not only respond to the
allegations that he is making, not only to come to the defense
of the critical role that journalism plays, as Thomas Jefferson
said, but also educating students from the beginning--and that
certainly carries through law school--to fully inform
themselves, to use the Internet, which is often demonized
because it does allow people to live within bubbles.
But it also has the positive capacity to empower us to
discover information, to pick holes in what used to be truths,
and I have to say ProPublica recently did a study in which they
showed that the U.S. Supreme Court in a number of its opinions
had facts that were questionable. While that's disturbing to
some extent, I think it's really--to my students, I made it
into an illuminating experience, that you have to question
literally everything, that just because it's on the pages of
the Supreme Court reports doesn't mean it's beyond criticism,
but criticism in a constructive vein, not in a destructive,
let's shut them down. Let's be more rigorous in the future
about examining our facts.
Senator Bennet. If the Chairman will allow it----
The Chairman. Sure. If you----
Mr. Cohen. I'd just, very quickly--you know, we put out a
variety of new teaching tools to promote digital literacy in
the high schools and middle schools to help people understand
how a tweet from one source can get amplified and suddenly
become common wisdom. We're trying to help students understand,
or help teachers push their students to ask for evidence, to
understand the sources, and to be critical when they look at
information.
Dr. Stanger. Just very briefly, Senator Bennet, I think
you've put your finger on something very important, that in a
fake news world, liberal education becomes only all the more
important, precisely because we do live in a big data world
where data mining of social media habits has affected the
outcome of elections. I think in that context, liberal
education teaches us to think for ourselves, and if we're
thinking for ourselves, we can't be reduced to an algorithm. We
cannot be manipulated by either corporations or our government.
Liberal education only becomes all the more important in this
world you've described.
Senator Bennet. Thank you.
Mr. Chairman, I just would say to Ms. Strossen on the point
on the Supreme Court, I used to say in Colorado that when I
read the majority's opinion in Citizens United that it was like
reading a seventh grader's American government paper. Then I
decided that that was insulting to Colorado's seventh graders,
so I don't say it anymore.
[Laughter.]
The Chairman. See, we have free speech in the Senate too,
don't we?
[Laughter.]
Thank you, Senator Bennet.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Well, thank you, Mr. Chairman, and thank
you for calling this hearing. You know, I came here with a set
of questions to ask, which I'm going to in just a second. But
listening to Dr. Zimmer in the discussion earlier and the three
principles of the Chicago Principles reminded me of Dr. King in
the south in the 1960's and the 1950's. He took the First
Amendment and his belief that people believing contrary to him
had the right to speak, too, but all of them needed to be non-
violent, and it changed this country.
The Chicago Principles applied to that era and used by Dr.
King, and, ultimately, embraced by those who wrote about the
Civil Rights Movement as well as those who were confronted with
making the decisions to make the Civil Rights Movement work,
were based in large measure on what became the Chicago
Principles. I just wanted to make that point, that free speech
is, as I think Senator Murray said, the most important, if you
had to pick one, of all our rights, and used in the proper
perspective and without abuse of using it in the proper
perspective can make fundamental change.
I commend what you've done by embracing that at the
University of Chicago and appreciate all your comments with
regard to it. I say that to begin with, because my questions
are going to be trivial. But if you'll listen to the end of
them, they'll end up making sense.
Dr. Zimmer, are you a Bears fan.
Dr. Zimmer. I am, yes.
Senator Isakson. Your turn is next, Ms. Strossen. You need
to listen to this.
You're a Bears fan, and right now, we have a huge issue in
the NFL in terms of standing for the National Anthem. Does
every Chicago Bear player who is owned by the--I guess the
Halas family still owns the Bears--whoever does own them--are
they free under our Constitution and under the laws of our
country to exercise their right to stand or not stand for the
National Anthem?
Dr. Zimmer. Well, I'm not a constitutional lawyer and
you're asking me a constitutional question. I'm going to pass
that off to my colleague, who will answer the question.
Ms. Strossen. I know nothing about sports, but I do know
about the First Amendment. The First Amendment only binds the
government, as I'm sure Senator Isakson knows, so that you do
not have First Amendment rights, vis-a-vis, a sports team,
which is not the government. However, I'm not a labor lawyer,
and I understand there are some labor laws that might, in fact,
provide protection.
Now, if this were a government matter, so you have--you did
have President Trump threatening to impose some kind of
sanctions on those football players or other sports players,
that would be government abridgement of free speech, if he's
throwing around the power of the Presidency. But unless there's
a statutory protection, their league owners could, in fact,
control their on-the-job behavior.
Dr. Zimmer. But I will just say that if this was the
University of Chicago football team and players wanted to
express their views one way or another like that, they would be
free to do so. But, again, that's not a constitutional----
Senator Isakson. I appreciate you volunteering that. I'll
ask you this. The University of Chicago is a private
institution--is that correct--and not a public?
Dr. Zimmer. That's correct.
Senator Isakson. As a private institution, you would
exercise it that way. What about as a public institution?
Dr. Zimmer. Well, again, as a public institution, I would
seek counsel from my general counsel on what our constraints
are.
Ms. Strossen. On a public institution, that would
absolutely be protected speech. As Thomas Jefferson said,
dissent is the highest form of patriotism, so I happen to
believe not only that it's constitutionally protected, but that
it's actually consistent with our Nation's other values.
Senator Isakson. You rallied my----
Dr. Stanger. Am I allowed to just jump in, or how does one
get a word in?
Senator Isakson. Absolutely.
Dr. Stanger. I'm not a lawyer, but I just did want to add
something to this discussion, knowing something about the Civil
Rights Movement, and it's always puzzled me about this debate
we're having about the NFL, that people don't recognize that
taking a knee is a sign of respect, not disrespect. I think
that's very important to keep in mind when we view the actions
of those players.
Ms. Strossen. But we would defend it even if it were
disrespectful.
Dr. Stanger. That's taking it to the next level, but yes.
Senator Isakson. A public institution.
Dr. Stanger. Yes.
Senator Isakson. Well, that answer was very, very helpful,
and I appreciate it. I've enjoyed the panel immensely. Thank
you for what you've done.
I yield back, Mr. Chairman.
The Chairman. Thank you, Senator Isakson.
Senator Hassan.
Statement of Senator Hassan
Senator Hassan. Thank you, Mr. Chair and Ranking Member
Murray, and I, too, want to add my thanks to both of you for
the work on the bipartisan healthcare bill and continue to be
committed to working on with all of you.
To our panelists, thank you for being here this morning and
for this very important discussion.
You know, I come from a state that has a long tradition of
very vigorous political discourse, first in the Nation primary
and a citizen legislature of 424 members. If you ever hung out
with the New Hampshire legislature, you would hear a range of
views that can be quite extraordinary.
One of the things we also do well in New Hampshire is try
to moderate and facilitate discussions of opposing views. The
University of New Hampshire's Carsey School of Public Policy is
home to a program called New Hampshire Listens, which is a
civic engagement program, and really tries to take some of our
most difficult issues and foster civic dialog. I would hold
that out as an important example of a best practice for a
public University system.
But I wanted to direct my question mostly today, Mr. Cohen,
to you. In your testimony, you note that the First Amendment is
a bedrock principle of our diverse democracy, and I couldn't
agree more. You also lay out much of the judge made law around
the First Amendment that protects speech on college campuses,
and you make clear that the law strongly protects controversial
speakers, as I believe we all agree it should.
Courts have also recognized that the First Amendment has
important constraints. The classic example we all know is that
you can't shout ``fire'' in a crowded building.
A Federal lawsuit recently filed in Virginia alleges that
Richard Spencer and others conspired to incite violence in
Charlottesville at the so-called Unite the Right Rally.
According to the complaint, these co-conspirators told each
other to come to Charlottesville to, quote, ``conquer the
street'' and, quote, ``defend civilization from the Jew and his
dark skinned allies.'' They said they were ready to ``crack
skulls''--that's a quote--and traded advice on the legality of
running down counter protestors with cars, and we all know a
car later drove into a crowd of counter protestors, killing a
young woman, Heather Heyer, and injuring dozens of others. The
lawsuit states that many organizers and rally goers celebrated
this death as, quote, ``more than justified,'' close quote, and
one predicted, quote, ``a lot more people are going to die
before we're done here,'' close quote.
Just last week, one of the white supremacists in
Charlottesville, one who described Heyer's death as justified,
was arrested and charged with attempted murder for his role in
a shooting at the University of Florida after the speech by
Richard Spencer. He and two other Spencer supporters taunted a
small group of counter protestors waiting at a bus stop with
Nazi salutes and Hitler chants.
After yelling, quote, ``I'm going to kill them,'' unquote,
one of Spencer's supporters fired a shot at the counter
protestors. Thankfully, no one was killed at the event, but,
obviously, it could have happened.
My question is: When does protected speech cross the line
into an unprotected incitement to violence? Can't we agree that
a University has a responsibility to protect its students from
this kind of planned violence?
Mr. Cohen. You know, the situation that you described
that's described in the lawsuit tells you something about the
atmosphere on a number of college campuses. I think--I've read
the complaint in that particular lawsuit. I think it will be
difficult perhaps to prove some of the allegations, to be
honest.
Clearly, incitement has a very precise legal meaning under
the Constitution, incitement to imminent lawless activity.
There could be evidence of that, merely, you know, talk bravado
in advance, probably not enough. Celebrating someone's demise
in that ugly way, clearly not enough. The Supreme Court has
said that in the Rankin decision. These issues, I think, are
extraordinarily complex.
The issue that you described where we have people
intimidating others, harassing others--that's clearly not
protected speech. Efforts to provoke a fight, intending to
provoke a fight, is also not protected speech. There are
limits, but all of these decisions, all these questions, as
Professor Strossen, I'm sure, would say are intensely factually
specific, and that's the challenge in a situation like
Charlottesville to disentangle it.
Senator Hassan. It's a challenge for University
administrators who obviously have an obligation to protect the
safety and lives of their students.
Mr. Cohen. Could I make one point about that? The
University of Virginia and Charlottesville is in a particular
quandary because of Virginia's open carry law. They could not
stop people at a public demonstration from brandishing weapons.
That's a law that's in effect in more than 30 states, and it
truly, truly hamstrings municipalities and counties from
ensuring safety at public demonstrations.
Senator Hassan. Well, thank you.
Mr. Chair, I see that I'm out of time. I do have a question
that I'll submit for the record to Ms. Strossen, because I am
concerned about some of the way you characterize some
psychological research about the impacts of hate speech on
people. I don't think hate is a good thing, and I don't think
hate speech helps people.
Ms. Strossen. Do I have an opportunity to respond to that
at some point?
The Chairman. Well, I think so. Sure. We'll allow time for
that.
Ms. Strossen. Okay. As you know, Senator Hassan, I was
quoting respected social psychologists and also political
activists, starting with former President Barack Obama and
continuing with somebody who's very respected by college
students, Van Jones, who was speaking, in fact, at the
University of Chicago. From their different expertise and
different perspectives and experience, they concur that given
the sad reality that Senator Murray started talking about, the
prevalence of hateful attitudes and speech and conduct, it is
disempowering to these students to shelter them and shield
them, because it is going to undermine their resilience and
their ability to effectively respond.
I think we all agree that we're looking in the long run for
how are they going to be most effective in a world where hate
is a reality and hate groups are a reality.
Senator Hassan. Mr. Chair--and I see other witnesses want
to respond. I do know I'm out of time.
I would suggest to you that telling people who are the
victims of hate speech or who might have been traumatized by
combination in their past of hate speech and physical violence
how they should feel and whether it empowers them is
inappropriate. There's a lot of research that you didn't cite
that indicates exactly the opposite of what you did. Again, I
know we're out of time, but I just think that people are their
own best judges of whether this is----
Ms. Strossen. That's exactly why every person that I cited
is a minority person who was speaking from an experience of
having been subjected to hate speech.
The Chairman. Thank you, Senator Hassan.
Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you, Mr. Chairman, and thank you for
holding this hearing today, you and Ranking Member Murray. I
appreciate your doing this.
I think we all agree that free speech is not some kind of
left versus right issue. It doesn't work that way. I want to
see if I can ask a question from a little bit different
perspective.
Mr. Cohen, you run the Southern Poverty Law Center, which
tracks American hate groups and extremists, and one of those
extremists is Charles Murray. We talked a little about him this
morning, you know, a man who wears a fancy suit and peddles
racist junk science about how white men are, biologically
speaking, intellectually superior to everyone else.
Am I correct that you vehemently disagree with his views?
Mr. Cohen. Completely, Senator.
Senator Warren. Good. Me, too, and as someone who worked as
an academic researcher for decades, I think that spouting fake
science is extremely corrosive to public policy and should be
called out in public at every possible opportunity. We've got
that much. Let's go to the next part.
Mr. Cohen, do you believe that powerful institutions of
higher learning should ban people like Charles Murray from
speaking in public if those institutions or their students or
you or I don't like what those speakers have to say?
Mr. Cohen. Just as simply, absolutely not, Senator.
Senator Warren. Why not?
Mr. Cohen. Well, look, we make progress as a country by
having ideas tested, by having critical thought applied to
ideas that are expressed in every realm of life. The Supreme
Court has recognized the importance of robust debate. It's a
bedrock principle of our country, and we would be much worse
off if University presidents, students, or anyone could sensor
the speech of others simply because they disagree.
Senator Warren. I agree with you. In fact, I think it's
dangerous to suppress speech. First, suppression can backfire.
Instead of shutting up individuals with disgusting views, it
becomes a launching pad to national attention. Bigots and white
supremacists can make themselves out to be First Amendment
martyrs----
Mr. Cohen. Absolutely.
Senator Warren.---- and grow their audiences. Second,
suppression suggests weakness. It makes us sound afraid, like
we're afraid that we can't defeat evil ideas with good ideas,
and I just don't believe that's true. I believe in free speech,
but let's be clear. Free speech doesn't mean the speaker is
entitled to an audience. Free speech is not about shutting up
or remaining silent while someone demeans women or demeans
people of color or anybody else.
Students can critique. They can make their voices heard,
and they can be very powerful when they do. Free speech means
more speech.
Professor Stanger, you moderated an event with Mr. Murray
at Middlebury College where you teach. You were physically
attacked. Would you agree with me that acts of violence are not
protected by the First Amendment?
Dr. Stanger. I absolutely would agree with you, Senator
Warren, on that point. But I would disagree with you,
respectfully, on your characterization of Charles Murray's
work, and maybe I might say a little bit about the Middlebury
context, which would illuminate some things for us here today.
Charles Murray was invited by a student group to speak on
campus, and then the Political Science Department co-sponsored
the talk. We did so because we're almost all Democrats, and we
thought it was important for our students to engage with views
that are influential in the Republican Party. What proceeded to
happen was that another department on Middlebury's campus,
Sociology-Anthropology, sought to sensor the Political Science
Department.
In my view, this is solved very simply by a Treaty of
Westphalia between departments. I mean, let's let--if one
department thinks----
Senator Warren. Let me just say, Dr. Stanger, I appreciate
this. But in a limited amount of time, getting into
interdepartmental rivalries from the academic world----
Dr. Stanger. Sure. But let me just----
Senator Warren. ----I would actually prefer to spend our
time on the Middle East, because it will be easier to solve.
[Laughter.]
Dr. Stanger. This is true. This is true. But may I make one
more point, though, that's important? I think it's important.
The Chairman. I'll give you----
Dr. Stanger. Please.
The Chairman. I'll give you time, Senator Warren.
Dr. Stanger. Is that Okay? It'll take 10 seconds.
The Chairman. Senator Warren ran for the Senate in order to
escape interdepartmental rivalries.
[Laughter.]
Dr. Stanger. I understand that sentiment completely,
Senator Warren.
Senator Warren. I wanted to come to a place that was more
collegiate.
[Laughter.]
The Chairman. That's right. You should have time to--
Senator Warren, I'll give you some extra time to finish your
discussion.
Dr. Stanger. The point I just wanted to add that's relevant
to this is that no faculty member, to my view, would ever agree
for their department to co-sponsor a talk by Richard Spencer.
We're really talking about apples and oranges here, and there's
a public-private distinction here that needs to be made. At
these public universities, I think we're seeing these
provocateurs seeking to set up talks that don't really have
faculty sponsorship. Let the faculty lead, and I think we'll go
in the right direction.
Senator Warren. Let me just see if I can pull this back,
though, to the point about what happens with free speech,
whether it gets any special protection. The notion that I just
want to underline here is that the people who attacked you get
no special protection. Neither does the Charlottesville white
supremacist who murdered a woman there, or the three white
supremacists who tried to shoot people at the University of
Florida last week. They will go to jail.
Free speech is not about violence. It is not about silence.
What I'm concerned about is that right now, it is all too easy
for all of us to avoid hearing anything that we don't already
agree with, and that is an enormous threat to our democracy.
I know that powerful people want us divided, that foreign
governments are pouring gasoline on that fire, flooding
Facebook and Twitter with angry messages designed to stir up
lingering resentments. The President of the United States is
pouring even more gasoline on that fire, attacking our free
press as a, quote, ``enemy of the people,'' and even
threatening to use the awesome power of the government to shut
down press outlets for reporting that he doesn't agree with.
I don't care what your politics are. All of us who believe
in America and its freedoms need to work harder to put out that
fire, and we start by making sure that powerful institutions
and individuals don't shut down speech they don't like, and
that includes universities, and it definitely includes the
President of the United States.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Senator Kaine.
Statement of Senator Kaine
Senator Kaine. Thank you, Mr. Chairman, and thanks to the
witnesses. I was at a classified hearing on Niger, and I
apologize that I didn't hear your statements.
This matters a lot to me, because Virginia was subject to a
horrible act of violence on the 12th of August. White
supremacists largely from outside of our state came to the
University of Virginia in Charlottesville to perpetrate not
just bigotry and hatred, but violence and murder. They chanted
slogans like ``blood in the soil'' and ``Jews will not replace
us'' next to synagogues and the Hillel Foundation on campus.
They chanted other horrible racist comments. One from southern
Ohio used a vehicle to kill a beautiful 32-year-old paralegal,
injuring 19 others.
Two state troopers who weren't supposed to be working that
day but needed to work that day to try to protect people were
killed when their helicopter crashed. I knew both well. One was
my helicopter pilot every time I flew as Governor of Virginia,
Jay Cullen. The other, Berke Bates, was a member of Governor
McAuliffe's security detail. They wouldn't have been working
that day had white supremacists, confederates, and neo-Nazis
not tried to inflame violence in Charlottesville.
In the aftermath, many of these individuals have not
condemned these actions but even celebrated the death of
Heather Heyer, the paralegal, one calling her a disgusting
Communist, one of the organizers of Unite the Right Rally. I
share Senator Warren's belief strongly that colleges should be
a place of robust speech and disagreement. We don't need to
protect young people from free speech. We need to expose them
to different ideas and have them exercise their critical
faculties to make their decision about what they think is right
and wrong. But I think we cannot use the banner of protecting
free speech to allow people to terrorize folks.
I want to put in the record, if I can, Mr. Chair, a sermon
that was delivered by a friend of mine, Jake Rubin, who is the
Hillel minister at UVA. He's a rabbi, and for the Holy Days
commemoration this year, he delivered a sermon about the anti-
semitism and the violence that was on display and the
connection between Jews and their experience of anti-semitism
and other minorities who are targeted.
Senator Kaine. I have another friend in Charlottesville
whose daughter was struck in the face by a white supremacist
wearing a leaded glove and was injured pretty badly. He has
been arrested and has been extradited from Indiana back to
Charlottesville to face criminal charges, as should be the
case.
I'm sure you got asked this question. But I know trying to
draw a line between protecting free speech, but then
universities--and I know we have the president of the
University of Chicago--I think they have a significant
responsibility to protect their campuses from violence. When
individuals are coming in who either intentionally--or there's
a reasonable probability that their activities could lead to
violence, could lead to people being terrorized--I think that
universities need to take action to try to protect their
communities, not from the speech but from violence that can
naturally occur from these.
I wonder what your thoughts are about whether the costs of
that protection have to be borne by students and taxpayers or
whether they have to be borne by those who would try to come to
campuses and foment that kind of activity. That would be a
question for anyone.
Ms. Strossen. Well, the U.S. Supreme Court has actually
held in a case in which the ACLU was defending freedom of
speech for a controversial speaker--it happened to be a white
nationalist in Georgia--and the Supreme Court held that--and
this was part of a series, the most recent of a series of
holdings--that government may not fob off onto speakers the
costs of providing security, because that's like imposing a tax
or a penalty on free speech, and, in particular, government may
not impose differential costs, depending on how controversial
the speech is.
But, Senator Kaine, as Richard Cohen and I were talking
about beforehand, we both see this as a very serious problem,
because there are a lot of schools that cannot literally afford
the enormous costs that have been borne by Berkeley, for
example, or the University of Chicago. As educators, I
certainly would not want to cut faculty salaries or raise
student tuition, in all seriousness, in order to have to deal
with this.
Senator Kaine. Ms. Strossen, can I ask this? I know you're
an expert on this. In that Forsyth, the Nationalist Movement
case, is it a very unequivocal ruling that no matter what the
likelihood of violence is--we're not talking about speech.
We're talking about--if you could make a prediction that
certain kinds of speech are not just likely, but guaranteed to
produce violent----
Ms. Strossen. Oh, absolutely, and that----
Senator Kaine. The Supreme Court didn't say in that case
that you couldn't charge for necessary security.
Ms. Strossen. Oh, no, no, no. That's been the law--that has
been the law forever, even when the Supreme Court very strongly
protected freedom of speech by rejecting--see, in this country,
we used to say any speech that has a bad tendency, that might
at some point in the future lead to something harmful. That was
what was used to shut down abolitionist speech and civil rights
speech and anti-war speech, because--anything that was
unpopular.
In 1969, in a case involving the Ku Klux Klan, the Supreme
Court unanimously held that you can punish speech because you
fear it might induce violence if, but only if, the speaker
intentionally incited imminent violence that was likely to
happen imminently, and that standard was very important for the
Civil Rights Movement, because many of their speakers were
being shut down and punished and even incarcerated because of
the fear--oh, well, that might lead to violence--in these
communities that were hostile.
Senator Kaine. If it's violent and it's so predictable and
imminent that you can fairly make that----
Ms. Strossen. Government has an obligation to----
Senator Kaine. You don't base it on the content of the
speech. You base it on the high likelihood of it producing
violence.
Ms. Strossen. Exactly. You look at the context.
Senator Kaine. Dr. Zimmer, if I could ask you to comment on
this--I really appreciated the statement that you put out at
the University of Chicago following the tragedy in
Charlottesville, because it was a powerful statement and it
spoke to the anti-semitism of this.
The Charlottesville thing was sort of advertised as about
statues. That didn't have anything to do with ``blood in the
soil.'' That didn't have anything to do with ``Jews will not
replace us.'' This was a very significant anti-Semitic, neo-
Nazi effort by individuals who came very prepared for violence
from around the country, and I appreciated the statement you
put out.
Talk about how--because you're pro-free speech in the way a
University president should be, but if you could--Mr. Chairman,
I'm over my time, I recognize--but I'd love to hear you talk
about how you grapple with this question of speech that is
likely to lead to violence.
Dr. Zimmer. Again, we have both the advantage and
disadvantage of being private, and so we don't particularly
need to act precisely on the basis of the First Amendment in
every situation. But for us, because we had taken such a clear
position on free expression and its importance, we felt it was
very important for us to recognize these acts for what they
were, and it simply became very difficult to think about people
standing with weapons and Nazi symbols in front of a synagogue
or a similar situation with symbols of the Ku Klux Klan, again,
a weaponized group of people--to think about this as expression
that was not threatening. I mean, what is the message that is
being delivered.
We made a very strong statement against it for that reason.
We would not have weapons on our campus. If a speaker wanted to
come and said, ``You know what? I want to have six people
standing in back of me with semi-automatic weapons,'' we would
say, ``Sorry, we don't have semi-automatic weapons on our
campus. If somebody has invited you, you can come, you can
speak, you can answer questions. We're not going to pass
judgment on what it is you're saying, but you cannot stand
there with weapons that carry an implicit threat.''
If I could just add one example that I think is interesting
about the cost issue that you raised. After the Charlie Hebdo
incident in France, a woman from Charlie Hebdo made her first
speaking appearance at the University of Chicago, and the
security concerns, for obvious reasons, were extremely high.
That was an example that, in fact, where we made a
conscious decision. It was too important for--and this person
had been invited by a student group to be able to speak. Again,
we paid the cost of that security. Part of the issue is you
start seeing these things on every side, and the cost issue is
a complex issue that I don't think we've got actually fully
figured out yet, to tell you the truth.
Senator Kaine. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Kaine.
Thank you to each of the four of you. We have votes in a
few minutes, so we're going to conclude the hearing. What I'm
thinking as I was listening to your terrific testimony is that
we're dealing with a problem here with more--by more speech,
because your appearance here today will be noticed and seen by
lots of people on college campuses and people who watch CSPAN
and who think about these issues, who might not have thought
about them in as clear a way as they might, having now heard
what you have to say.
I also think it is true that we've seen a reaction--Ms.
Strossen made this point--where more speech--and some of you--
Dr. Stanger, I think you--all four of you, really, are
responsible for this--that you've spoken out from your various
perches in life and have been noticed by the rest of the
country, and you've had an impact. I mean, more campuses have
adopted the Chicago Principles. In a variety of ways, each of
you have done that. That's encouraging that in our country we
see these issues taken more seriously.
Also, I think the hearing reminds us of what was said in
exchange with one senator and you, which is that we live
increasingly in a country where we tend to get our information
from people who already agree with us, or we with them, and we
don't, as Senator Howard Baker used to say, consider that the
other fellow--or today, he might say the other fellow or the
other woman--might be right. That's what he always said--the
other fellow might be right.
We don't have as much diversity of information--real
diversity of information as we should have, and I suppose
college education and maybe especially a liberal arts education
is a real antidote to that. It makes universities even more
important as places where students are exposed to different
points of view.
As I mentioned, in my case, when I was at the Kennedy
School at Harvard, it was good to have a dean who understood
that most people there weren't Republicans, and he worked hard
to get some there, so at least you could actually meet one, you
know, while you were going to graduate school.
I like the ``good morning--what evidence do you have for
it'' line. I'm going to remember that. I would conclude by
saying I think you noticed on this panel that this panel of 22
or 23 Senators--you could not find many more diverse views than
you can find around this table. But I think on this issue, we
listened very carefully to you, and it wasn't--as Senator
Warren said to me as she left, this is not a left-right thing
for us, and you presented your testimony in that way.
The one thing I would just conclude with in my own view--I
hope that the U.S. Congress won't do what it often is tempted
to do, which is to think that we've flown to Washington from
our homes and have suddenly become wise enough to tell 6,000
colleges and universities exactly what to do, and that either a
free speech mandate, which some advocate, or a free speech
code, which other advocate, imposed from Washington on 6,000
colleges and universities is a bad idea.
We have a free speech mandate in the United States
Constitution, and it's up to college--we have University
presidents and board members and faculty members and
communities who ought to be able to do what you're doing and
argue this out and try to respect everyone's rights as we move
ahead.
Thank you again for you attendance and excellent testimony.
I wish every Senator could have heard it, and I know many
Americans will benefit from it.
The hearing record will remain open for 10 business days.
Members may submit additional information and questions to our
witnesses for the record within that time if they would like.
The next scheduled hearing before this Committee will be on
Tuesday, October 31st, at 2:30, entitled ``Implementation of
the 21st Century Cures Act: Achieving the Promise of Health
Information Technology.''
Thank you for being here today. The Committee will stand
adjourned.
[Whereupon, at 11:46 a.m., the hearing was adjourned.]
[all]
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| Hatch, Orrin G. | H000338 | 8314 | S | R | COMMMEMBER | UT | 115 | 1351 |
| Burr, Richard | B001135 | 8286 | S | R | COMMMEMBER | NC | 115 | 153 |
| Collins, Susan M. | C001035 | 8291 | S | R | COMMMEMBER | ME | 115 | 1541 |
| Isakson, Johnny | I000055 | 8323 | S | R | COMMMEMBER | GA | 115 | 1608 |
| Murkowski, Lisa | M001153 | 8234 | S | R | COMMMEMBER | AK | 115 | 1694 |
| Alexander, Lamar | A000360 | 8304 | S | R | COMMMEMBER | TN | 115 | 1695 |
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| Scott, Tim | S001184 | 8141 | S | R | COMMMEMBER | SC | 115 | 2056 |
| Paul, Rand | P000603 | 8308 | S | R | COMMMEMBER | KY | 115 | 2082 |
| Roberts, Pat | R000307 | 8275 | S | R | COMMMEMBER | KS | 115 | 968 |
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