The "Sifting and Winnowing" plaque at the University of Wisconsin—Madison.
Editor’s Note: University of Wisconsin Professor Emeritus Donald Downs is a longtime friend of FIRE. Coincidentally, I worked for him as a teaching assistant when I attended the University of Wisconsin Law School. I was recently invited back to campus on FIRE’s behalf to report on a conference in Downs’ honor.
In the frame, in the basketball stadium, two players are reaching for the ball.
“That’s Bill Russell. He was my first athletic hero.”
Donald Downs—emeritus professor of political science at the University of Wisconsin – Madison (UW)—turns once again to the photograph he’s looked at a thousand times, and helps me see the bigger picture.
Russell, is at 6’9”, still decisively shorter than his opponent, the 7’1” legend Wilt Chamberlain. But he is leaping anyway. Stretching to his max. Improbably, he blocks the shot.
Downs smiles sheepishly.
“I cut it out of Boston Celtic Pride magazine.”
It’s just a picture, but it’s also more.
The black and white snapshot held a place of honor in Downs’ office where, for decades, it overlooked the professor’s scholarship at the intersection of free speech, academic freedom, and the law. In 2015, after spending years swearing he was going to retire but never quite going through with it, Downs finally gave his last lecture, boxed up Bill Russell’s picture with other collectibles from his office, and took it all home.
He brought some of those mementos for me to look at here in UW’s Memorial Union—a bustling, student-filled fortress of a place, set between bright blue Lake Mendota and the foot of the imposing, green Bascom Hill, which stripes through the heart of this midwestern flagship campus.
We have been here before. Student and teacher.
Technically, I was a “teacher” too—one of Downs’ graduate teaching assistants while I attended law school at UW. But to teach Don Downs’ material, in the Don Downs Method, meant I was learning as well.
Downs, a scholar whom FIRE President and CEO Greg Lukianoff describes as “a giant in the field,” is, by many accounts, one of the most passionate and successful free speech advocates of our time.
He’s won numerous accolades for his research and teaching, written books on some of society’s most contentious free speech-related topics including academic freedom, the militarization of campus, and pornography, and won a legion of fiercely loyal students. Many of those students, like me, went on to First Amendment-focused careers of their own. Many more stay in touch for a lifetime.
Now, UW’s Center for the Study of Liberal Democracy—which Downs co-founded with philosophy professor Lester Hunt in 2007 to “probe the nature and prospects of liberal democracy and its core principles, practices, and institutions on campus”—invited me back to attend a weekend conference in honor of Downs’ remarkable career. While there, I interviewed Downs and listened to his reflections on what a career fighting for free speech means to him.
Which brings us back to Downs’ treasured picture of Bill Russell, and the lessons he takes from his sporting hero. There’s the example of Russell’s innovative, team-minded approach to the shot-block: “Basketball greatness involves a lot more than shooting.” And then there’s Russell’s social and political influence off the court.
Russell, who won an astounding 11 NBA championships during his 13-year professional career, was not just a giant on the court, as Downs explained, but has also been a towering figure in the fight for racial equality.
“He was significant in terms of politics, and coaching, and race,” Downs says.
A simple picture transforms into a tutorial on how a black athlete made an impact on free speech in civil rights movement-era America.
Going through Downs’ old stuff offers a glimpse into the teaching style that has helped Downs impart concepts of liberty and justice to generations of students with exceptional, lasting impact.
If you knew him, the items together are just as pointed, hilarious, and downright bizarre as you would expect.
His lucky Oakland Raiders hat: “I just liked how the Raiders were genuine individuals and defied convention. They were rebels and liked shaking things up.” A toothbrush that once belonged to the notorious cannibal serial-killer Jeffrey Dahmer—a “gift” from a former student who said he thought Downs “would get a kick out of” having it. (Downs was, he would like you to know, properly horrified.) A license plate: New Hampshire’s “LIVE FREE OR DIE.” Springsteen memorabilia: “There was something about the authenticity of his music. It contributed to my sense of engagement.”
All represent Downs’ singular, socially minded approach to his free speech work.
I was just one of dozens of former students, colleagues, and friends who converged on the UW campus for the weekend-long conference celebrating Downs’ work.
Formally, the event was titled “Free Speech on Campus: Old Challenges, New Threats.”
Attendees quickly took to calling it “Downsapalooza.”
Some of the biggest names in the campus free speech movement were on hand to discuss the state of free expression and academic freedom in higher education, while honoring both Downs’ contributions to those fields and the impact he had on many of their personal paths.
Author Jonathan Rauch, a senior fellow at the Brookings Institution, gave the keynote address, speaking movingly about how free speech is the single most effective tool minority groups can use to protect their rights. Rauch, who wrote the influential Kindly Inquisitors: The New Attacks on Free Thought, thanked Downs for his invaluable help on the manuscript.
Northwestern University’s Laura Kipnis—famous for ironically triggering a Title IX investigation into her own conduct after publicly criticizing the trend toward universities’ overbroad implementation of Title IX—gave a special presentation on the changing landscape of “Offensive Environments” on the modern campus.
Former student Jason Shepard, now a professor and chair of the Department of Communications at California State University, Fullerton, spoke about getting his first glimpse, in Downs’ class, of the impact free speech could have on campus.
“His open-mindedness was contagious to students,” Shepard said. “To me, what I learned from Downs embodied the Wisconsin Idea,” referencing the push by the UW Board of Regents in the late 1800s to champion freedom as the truth-seeking tool of choice.
“Whatever may be the limitations which trammel inquiry elsewhere,” the Regents wrote, “we believe the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.”
That inscription has been emblazoned on the school’s main building, Bascom Hall, since 1915.
Sifting and winnowing is a way of life for Don Downs.
FIRE’s Lukianoff is among many who have been moved by the professor’s commitment to that ideal.
“Don Downs is a great man, a kind man, and a model to the current generation of First Amendment defenders. From its early days, his work at the University of Wisconsin was, and continues to be, an inspiration to us at FIRE.”
Of all that he has accomplished, Downs considers his work on UW’s student and faculty speech codes in the 1990s to be his single greatest achievement.
The student code was enacted in the 1980s to penalize so-called “hate speech,” in response to a spate of racist incidents on campus. The policy would have made “demeaning” language or jokes subject to punishment.
As FIRE co-founder Alan Charles Kors wrote back in 1999, while UW’s “commitment to ‘fearless sifting and winnowing’” had survived even 1950s-era McCarthyism, “it could not survive political correctness.” Kors observed:
By 1989, the threat to academic freedom at Wisconsin came from the administration and faculty. Equating “racist” and “sexist” speech with discrimination by race and sex, a faculty committee dominated by law school professors drew up a “code” that banned “racist or discriminatory comments, epithets or other expressive behavior,” in “non-academic matters” that were either “directed at an individual or on separate occasions at different individuals.”
Downs was among those who initially supported limits on hate speech. UW talked to Downs about the process in a piece about his retirement:
[Downs] had initially supported the student speech code and had, without realizing the implications, voted in favor of the faculty code. In his first book, Nazis in Skokie: Freedom, Community and the First Amendment, he actually argued in favor of censorship.
“I started seeing the results of censorship in practice. I trusted authorities to do censorship in a more principled way, and as I started teaching more, I started becoming more aware of the need for freedom of thought,” he says. “I think a society based on a fear of speech is a society with the kind of character that is detrimental to a good life.”
In 1991, in The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991), a federal district court held the student code unconstitutional on First Amendment grounds.
“[T]he suppression of speech,” the court remarked, “even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.”
And by 1992, Downs told a local radio station his views had also changed.
That change of heart informed Downs’ work later that decade to abolish a similar code that would have imposed limits on faculty speech.
It was a fortuitous Wisconsin Public Radio show appearance, in the wake of the student speech code being struck down, that set in motion Downs’ involvement in the ultimate abolition of UW’s faculty speech code. The Wisconsin State Journal’s Doug Moe reported:
The subject was a campus student speech code that had been struck down by a federal court. A revised version would soon be voted on by the faculty senate.
Downs had voted for the first code — commonly described as an attempt to end “hate speech” on campus — but his views were evolving. He surprised the radio host by saying he now opposed the code. The right to freedom of expression, especially on a college campus, was more important.
The show took a phone call from a listener, identified as “Richard,” who said, “You have left something out. There is a worse code that you have not mentioned.”
Downs said, “What do you mean?”
“There is a faculty code,” the caller said. “I ought to know. I was investigated under it.”
Downs’ appearance on the radio show, and his subsequent discussions with the caller, who was a UW-Madison art professor named Richard Long, eventually led to the formation of a campus group, the Committee for Academic Freedom and Rights.
The Committee for Academic Freedom and Rights (CAFAR) was a non-partisan faculty group with retained legal counsel supported by a grant from the Bradley Foundation. CAFAR defended professors like Long against allegations under the code, and, in conjunction with like-minded students, waged a long battle to eradicate the faculty code in the name of academic freedom.
“We were unique in higher education, and won policy victories while legally protecting over 20 individuals over the course of 20 years,” Downs said. “Working with [CAFAR] was the biggest honor of my career.”
That work involved lots of ups and downs and some serious soul-searching about his own commitment to free speech.
Downs remembered what was perhaps his lowest moment in the spring of 1998. He had temporarily agreed to a compromise with the university’s speech code committee. Almost instantly he knew it was a mistake. He realized it would have compromised much of what he and the students he worked with on the speech code committee had worked toward.
“I went and bought myself a present to make myself feel better,” he said. He elaborated on the details in an email:
It was a Friday afternoon. I subconsciously knew it was a problem and felt lousy. I went to the bookstore and bought a book by Lev Shestov or René Girard on Dostoyevsky to soothe my growing anguish. Over the weekend my mistake dawned on me, and I vowed to bow out when the committee met to vote on the deal the next week.
Monday morning I got an email from Jason Shepard, essentially saying, “Et tu, Downs?!” Jason and the other two students on the committee, Amy Kasper and Rebecca Gratz, had met and decided to challenge me and my allies on what we had done. I told him I knew I’d made a mistake and that I was prepared to correct it, though there would be egg on my face.
In the end, the deal fell through and the next year we went on to success in the faculty senate.
The episode represented the give and take Downs preached to, and practiced with, his students and the difference it made in effecting change on campus.
“We were new to big time campus politics and made mistakes,” he said. “But we learned from our mistakes and went on.”
“It also shows how crucial it is to have principled students on your side.”
The faculty speech code battle had moments of levity, too. Downs admitted at the conference that he and other faculty members allowed themselves a bit of fun with complaint boxes installed by administrators around campus for students and faculty to anonymously report speech code violations.
“We used to make jokes about the complaints we’d file against each other,” Downs said. “At one time we had, like, 50 complaints against each other.”
Don Downs is still learning new lessons. And there is more teaching for him to do.
With recent tensions on campuses—ones that are both similar to and distinct from those he’s seen before—he has a new vision about where universities, specifically, should go from here.
“Every institution has a particular core reason that it exists,” Downs said. “We are distinctive because we are in the truth business. No one else is like we are.”
For that very reason, Downs says, universities must commit themselves to achieving social justice through free expression.
“I’m all in favor of pursuing justice. I mean, my God. I think it’s Dante who said there’s a special realm of hell for the indifferent. But as a university we are supposed to deal with that in a particular way, which is true to what we’re about.”
“You can’t establish any notion of justice that doesn’t involve free speech. Because free speech not only helps us get to justice and truth—because there’s no such thing as perfect justice. It’s always got to be challenged and talked about.”
But Downs asks us to consider: What is justice?
“That’s the classic question of political philosophy, political theory. How should we live? And there are different answers to that,” he said. “There is no single satisfactory and universally agreed-upon notion of social justice.”
Embracing diversity, he said, means embracing diversity of opinion.
“We can’t begin to talk about diversity in a meaningful way without first making sure intellectual diversity is tolerated. The two go hand in hand.”
And it is universities, Downs said, that are uniquely suited to reconcile the two.
“That’s our distinct contribution. We are the ones who can bring those intellectual qualities to the discussion which makes it more just, and more respectful of the differences that comprise democracy.”
“In retirement,” Downs said, “I’m tying these things together in a way I haven’t before.”
“You have to start again and again.”
Downs is also something of a sports savant, with almost magical instant-recall of the winners and losers of every NBA, NFL, MLB, and college football championship game ever played. (Seriously. Try him.) In retirement, he will finally get to watch plenty.
Also on tap is extensive consulting work for organizations like the Institute for Humane Studies, and development of orientation materials for incoming UW students that teach the role that free speech plays at the university level.
The takeaway: Embrace and expect discussion and dissent.
In his keynote address at the conference, Jonathan Rauch observed that embracing the unique challenges free speech advocacy presents means strapping in—as Don Downs has done—for the long haul.
“Any of us who have been in the trenches as long as I have know that freedom of speech and freedom of thought is a cause you can never relax about,” Rauch said. “For the entire rest of time, until the end of the galaxy, we will have to get up every morning of every new generation, and defend this idea because it’s the most counterintuitive idea in the entire history of the human race: that people should be allowed to run around spouting wrongheaded, bigoted, misleading, offensive, seditious, heretical, etcetera, etcetera, etcetera, views.”
“It turns out free speech works incredibly well,” Rauch remarked. “It also turns out it’s very hard to defend, so you have to start again and again.”
Don Downs knows that.
For him, the fight for free speech always starts with the things that make it worth fighting for.
Back at the student union, he returns to the life of Bill Russell one last time.
“He was significant socially. Significant politically. There has never been a bigger winner in the history of basketball.”
You could swap out the word “basketball” for “free speech on campus,” and Don Downs could just as easily be talking about himself.