What is the responsibility of universities with regard to the pursuit of truth, the protection of free expression, and the advancement of diversity and inclusion? And how can universities balance these different values when they come into conflict?

These were the topics explored in PEN America’s panel discussion, “Campus at a Crossroads: Free Speech, Truth, and Democracy in an Election Year.” The event took place on September 26, 2019 in collaboration with New York University’s (NYU) Center for the Humanities and the Institute for Public Knowledge, who sponsored the event. Moderated by NYU Professor Ulrich (Uli) Baer, panelists Rich Blint (The New School), Suzanne Nossel (PEN America), Jeremy Waldron (NYU School of Law), and Lee Rowland (NYCLU) discussed and debated a range of current topics, including:

  • the special mission of the academy,
  • tensions surrounding the First Amendment, invited speakers, and campus protests, and
  • how campus communities can reckon with a rise in hateful expression as well as calls to punish faculty and administrators for their speech.

This transcript was edited for brevity and clarity.

On hate speech: its definition, consequence, and should it be punished?

JEREMY WALDRON: If you read hate speech laws, you see that they are not attempting to punish speech that is hateful, or punish speech because it expresses hate. They are trying to punish speech—or prohibit or limit speech—that stirs up hate against an identifiable group. So it is speech that has hatred as its effect, rather than speech that has hatred as its cause, or speech that is just full of hate.

SUZANNE NOSSEL: When you talk about speech that has hatred as its effect, that kind of scares me because if I say something—I could say anything tonight—and for some of you, it might elicit a hateful effect. If I question affirmative action, let’s say, it’s a controversial topic, if I call that into question, from some people’s perspective that could seem hateful, that could seem dehumanizing, that could evoke a very powerful response. There’s just a decision in France that came down, I think yesterday, about a woman who kind of launched the French #MeToo Movement, and she has a hashtag. . . “ExposeYourPig” is the translation of it. So she launched this hashtag, and she recounted a comment—an offensive comment—a sort of former distant colleague had made toward her. He brought a defamation suit against her and won, at least at the trial court level, and she is going to appeal it, because “#BalanceTonPorc” could elicit hatred—and it did towards him. He was on the receiving end of a huge barrage of criticism that damaged his career, his reputation. But what did she do? She recounted something he had said that he didn’t dispute. He didn’t deny having said it. It was true; that’s not in question, and she came up with a hashtag. And if that can elicit a hateful effect, and we are going to ban that which elicit a hateful effect, you know, I think there’s an enormous quantum of speech that’s going to be restricted and shelved.

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WALDRON: Normally, these laws are oriented towards speech that intends to stir up hatred, so we’re looking at the effect not on the victims, but we are looking at the effect on the society, and the effect on social peace. . . and the assumption is that a society that’s becoming multicultural cannot afford to plunge into communal hostility or intercommunal hatred. If you look at societies where that actually happens—not the fantasies of Americans, but you look at societies like. . . Nigeria or India where there’s serious intercommunal violence and serious intercommunal hatred, the notion is that citizens have some obligations to take care of that.

“These laws are oriented towards speech that intends to stir up hatred, so we’re looking at the effect not on the victims, but we are looking at the effect on the society, and the effect on social peace.”

On the history of the First Amendment

LEE ROWLAND: There’s an accompanying fable about the First Amendment. There’s a history which people sometimes forget: that the First Amendment was not handed down by God, not even handed down by the men—and I mean men who wrote it—but interpreted by the Supreme Court in very modern history. The First Amendment didn’t mean anything to you as an individual until, like, the ’40s. What’s so astounding is that it is so easy to come up with this narrative that it springs up fully formed, and it exists in the way we think of it today. That’s not at all true. Indeed, the First Amendment started as something that was used to actually convict someone for calling a cop a fascist.

ULRICH BAER: There’s something about this idea of the First Amendment that was ratified in 1791, and then ever since, it has allowed Americans to speak out freely without government repression any way they want, but has it actually done that? The first time it was cited by the Supreme Court is in 1919, so the entire 19th century, it’s never mentioned. There’s a deeper history; it doesn’t mean that the First Amendment doesn’t do important work.

ROWLAND: Of course! I think it’s important to recognize that thread of history. It’s been advocates and lawyers who have ratcheted it up, who have taken precedents from the Supreme Court that protected racists, and saved Charles Brandenburg—a literal leader of the KKK. [That] was the first time the Supreme Court found their religion and decided that there’s a free speech [issue] right there. Right before that case, there was a case with a guy who called a cop a fascist and he went to jail for incitement of peace. But guess what? After the Supreme Court easily identified this guy—this KKK leader named Brandenburg—the next case about that came from Charles Evers, a leader of the NAACP, and the language was so similar. He spoke at a rally and said, “I’ll ring your damned neck if you break this boycott.” It was a boycott against racist businesses, and the Supreme Court was constrained to protect him, because they boxed themselves in by protecting the rights of racists. So, our system was white supremacist, but as advocates, we ratcheted it up to protect people for whom the system is not designed for. This is not a natural process; it’s our job.

“There’s a history which people sometimes forget: that the First Amendment was not handed down by God, not even handed down by the men—and I mean men who wrote it—but interpreted by the Supreme Court in very modern history.”

On protesting an invited speaker: the right to speak on both sides

WALDRON: If we get back to the campus context and look at some of the things that are said in the name of free speech, it seems to me that they are designed to pacify students and make sure that they sit quietly while they are being lectured by some racist figures. If you read the concerns that are voiced about free speech on campus, there are worries that some unpopular conservative figure [or] racist figure is brought onto a stage, and when there is a noisy reaction—heckling, shouting, slow hand clapping—this is seen as a denial of that person’s free speech. The implication being, that if we respect free speech, students should sit quietly, with their hands folded, and listen. And if there’s going to be a protest, it should be on the other side of campus where nobody can see it; the person on the stage ought to be in complete control of the presentation. And I think that’s an insult to free speech. College crowds ought to be tough crowds, and speakers ought to come to terms with that.

NOSSEL: We absolutely defend the right to protest. . . where we draw the line is when a protest makes it impossible for an individual to speak. And for the audience to come to hear the individual, to hear what they came to hear, we think then it crosses a line into being censorious. The term is “the heckler’s veto”. . . Students and anybody in the crowd should have to right to unsettle a speaker, but not to drown them out and shout them down.

RICH BLINT: There’s a whole martial of apparatus from public safety, from event management, that comes in with Milo and everybody else to make sure that Milo has a seat at the table, and that lone vetoing speaker—which is usually not a lone person—they don’t have the same apparatus at all. In a climate like this, a climate where we pay lip service to our troubled racial career, or—give me any kind of euphemisms about the life and death consequences of the race—someone like Milo, or any white supremacists coming on campus, that person should be confronted, as Jeremy was saying, by rigorous debate. But it’s not the same thing when Angela Davis comes. It isn’t! How do we even the playing field, for a speaker like me, or Jeremy, or Angela, to get that same level of care?

“We absolutely defend the right to protest. . . where we draw the line is when a protest makes it impossible for an individual to speak.”

On universities as special spaces, different from society as a whole

BAER: When outside speakers come in, the university’s role is to vet ideas and not to allow everything and anything. I’ve gone to the ACLU and interviewed their legal director, and said that I want them to sue Harvard on my First Amendment right because the law school hasn’t invited me to give a speech. They said, “What are you talking about?” and I said it is my absolute right to speak at the Harvard Law School and they said, “What are you talking about, Uli? Maybe they’ll invite you, but probably not.” But I said if I actually advocate for a white ethno-state, and I’m a neo-Nazi, I’ll get your legal aid, right? They said, “Well, that’s different.” And I want to understand the difference because the university’s role is to actually decide what merits debate. The university does not allow everything and anything; this whole idea that any classroom will discuss anything. . . there’s a lot of constraints on speech. I make my students take exams, they have to speak. . . I make them say certain things about certain topics. That’s a content restriction, not allowed in the First Amendment. So the university itself is a very large organism, and I’m interested in this blurring line between public universities and society.

BLINT: With Milo and anyone of his yolk, it’s not this idea of left-leaning campuses, radical professors. We deal with facts; we deal on the ground with facts. You don’t get to tell me things about black life that I know to be categorically false, and that’s what they do all the time. There’s this kind of fiction, mythology, legend somehow, that when Milo comes to campus about the rigorous debate he might provoke. But on some level, Berkeley is left-leaning and radical, and that’s why he’s offered as some kind of a corrective? I’m saying that’s a lie. . . We have to be honest about what we are going to do about it, and not hide under the First Amendment. How about we shift the debate entirely and take the mic partly out of his hands, but also maybe readjust it and say you cannot come in here with fiction and ad hominem? And I think it’s a reasonable thing to ask.

“We have to be honest about what we are going to do about it, and not hide under the First Amendment.”

ROWLAND: The university is such a complicated place, I think, because it serves two really dual purposes. One is curricular, and there’s a paternalism to curricular, which is that you’re the teacher and they’re the students. And in some ways, that’s the university’s business function. It’s preparing you for a career, some appropriate cog in our capitalist system. On the other hand, there’s the quad, the nature of public life of the university, having students invite speakers—it’s cultivating adulthood, an attempt to build up students and to empower them. And I really think that matters, that it matters to think about this through a power lens. When you tell students invite this person, to second guess that—it infantilizes your students in a way that doesn’t live up to the liberal ideal of the university. But if you as an administration are inviting someone to regurgitate whether or not the earth is flat, a discussion, you’re failing at your curricular job. Reasonable people can disagree, but I think all universities need to be aware of that distinction.