Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico: All right, folks. Welcome back to So to Speak, the free speech podcast where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. Some housekeeping before we get started today: We are gonna send our first ever listener survey, and it should come out a few days after this episode drops. So, if this episode drops on Thursday, you can maybe expect it on the following Monday or Tuesday.
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The next episode, actually, is our 200th episode. It’s hard to believe we started recording this podcast in April of 2016 with our first guest Jonathan Rauch. So, it’s probably about time that we do a listener survey. So, please, subscribe to the email newsletter and share your feedback with us, so we can make the next 200 episodes even better than the first 200 episodes were. Okay. That housekeeping out of the way, today’s podcast is gonna be discussing something that’s in the news you can’t miss and has been a hot topic of conversation and work even within the –
Greg: Oh, my god. Are we gonna talk about the Britney Spears book?
Nico: The one that beat your book out on the bestsellers list, Greg?
Nico: My wife is listening to that book right now. So, I’ve been, I guess, reading it or listening to it vicariously through my wife. But Greg, as our listeners know if they listened a few podcasts ago, has his own book our right now, The Cancelling of the American Mind. And well, you have the Britney Spears book, Greg, and you have, of course, the Israel Hamas War to contend with when this comes out.
And it’s both been a spur for media requests for you, because the Israel Hamas War, as we’re about to discuss, has resulted in tensions for free speech on campus as well as questions about cancel culture, but it’s also resulted in a lot of news shows, for example, covering nothing else besides the Israel Hamas War. So, as you can hear, Greg Lukianoff –
Nico: President and CEO of FIRE is joining us on today’s podcast along with Ronnie London, who was on the last episode about the supreme court. Ronnie is, of course, our general counsel. Ronnie, welcome back again.
Ronnie: Thank you, Nico. Happy to be back.
Nico: And Alex Morey, who is the director of campus rights advocacy here at FIRE and has taken, what, Alex, probably like 400 media requests since the attacks on Israel on October 7th? Have you had time to do anything else?
Alex: Yeah. I’ve squeezed in a few other things, but I’m so happy to be here and that you are not sick of hearing my voice quiet yet, but lots of things still yet to talk about.
Nico: Yeah. Let’s just dive right in. Obviously, on October 7th, that morning here in the United States, there were attacks on Israeli civilians by Hamas, something like 1,500 dead, 240 taken hostage into the Gaza Strip. We knew when we arrived at work on Monday – and we were discussing it over the weekend as it was unfolding, in fact – that this would become a moment for free speech on campus. I sent an all-staff email saying as much. And we knew that because the Israeli-Palestinian conflict for years has been a source of tension on campus. Passions run high.
And any time passions run high on any sort of issue, whether it’s abortion or race, censorship soon follows. And Greg, in one of those first meetings, you were talking about some of your experiences after terrorist events and what that meant for campus free speech, particularly in the wake of 9/11. You wrote a blog post on your Substack, “The Eternally Radical Idea.” Can you talk a little bit about your first thoughts after October 7th, and what you expected we would see on campus?
Greg: Well, honestly, my first thought after October 7th was just how monstrous the attacks were themselves. I started right after 9/11. And even though those were monstrous attacks, they didn’t have the almost personal element of people being kidnapped and raped and butchered. So, there was a vividness to what happened that really terrified the hell out of everybody. I had the phrase from one of the videos that got shared, just a little boy, saying to him, “Daddy’s dead. It’s not a prank. He’s dead.” And I’m a dad myself, and I just couldn’t get that out of my head.
So, the first thing was just how visceral and awful it was. And I kind of predicted things slightly wrong. I thought it was gonna be a lot more like what we saw after 9/11. People may not know this, but it’s a fun fact about me. To find an apartment at Philadelphia – I was living at San Francisco at the time. I landed at 9:10 a.m. on September 11th of 2001 at the Philadelphia airport and got stuck in Philly for a whole week because – Younger people won’t know this, but the airways got completely shut down. You couldn’t take a flight. I couldn’t get back home.
And all of my early cases, almost all of them, were related to 9/11. My first letter was defending Richard Berthold, a guy who joked on September 11th – insensitively, but nonetheless the joke – “Anyone who can blow up the Pentagon has my vote.” And he eventually was forced out. We had the Sami Al-Arian case. That’s a guy who was alleged to have ties to terrorism, which later he was indicted on. But Bill O’Reilly released a video of him from 1989 saying, “Death to Israel.”
And then, of course, later, there was the Ward Churchill case, even though the speech that he got in trouble was right around 9/11, and it was about 9/11. He called the victims “little Eichmanns.” That didn’t really come to light until about 2005, or at least paid attention to it at the time. And I kind of thought that after October 7th, it would be a lot like we saw then. And the predictable things were 1.) There would be demands for the punishment of student professors coming from off campus. 2.) Campuses would suddenly rediscover free speech, academic freedom, because they always do when they perceive of threats coming from off campus. That’s embarrassingly predictable.
They’re much more cowardly when the threat comes from students or faculty or administrators on campus. But I did think we were gonna see a big uptick in people getting in trouble for pro-Palestinian speech, and it hasn’t really been that different of a year for FIRE. Now, when I say this, people sometimes misunderstand what I’m saying as in, “Oh, no. Everything’s fine.” No. No, no. What people don’t get is how bad a normal year is at FIRE at this point, how many case submissions we get in a normal year. It’s been particularly awful for the last six years, as we’ve seen. And that’s a big theme of Cancelling of the American Mind.
We did see the universities suddenly rediscover free speech. I’ve written somewhat cynically about whether or not they’re gonna live up to that. My guess is no. Harvard finished dead last for a reason in our campus free speech ranking. So, they’ve got a lot to prove there. But yeah, so far, a lot of the cases that have come up have been ones that are a little bit closer to the line. And one thing that has been horrifying to see on campus is – I can’t remember.
Maybe in 2020 that I’ve seen this many incidents of true threats, people actually calling, issuing nonprotected death threats or actual assault, students grabbing each other. For example, there’s lots of videos of that, and grabbing someone is assault. And then also things that sound like either outright discrimination or discriminatory harassment, like the professor at Stanford who had all his Jewish students identify and then go to the corner and then berating them for begin colonizers who had murdered more people than died in the Holocaust. And of course –
Alex: Allegedly. There were some facts or alleged facts that came out after that that suggested that maybe the initial telling of that story was not all on the up and up. But if it was as alleged, that definitely would not be protected.
Greg: Yeah. I mean there are a couple factors that made it cross the line, but, yeah, we always have to double- and triple-check everything. So, so far, it’s been an interesting time on campus. I think actually a lot of the blacklisting and that kind of stuff is happening more from private companies and that sort of stuff, and that analysis is always interesting since we link our definition of cancel culture to public employee law. But that’s a whole ‘nother digression. So, yeah.
My biggest hope out of this would be that the people who are suddenly discovering cancel culture – You’re watching people on Twitter who have not paid any attention to this being like, “Oh, my god. Suddenly, people are getting in trouble for their political opinions.” It’s like suddenly? It’s been out of control for years now, and you haven’t paid any attention to this whatsoever. And I was hoping that there might be a reevaluation of how simplistic the idea of consequence culture is or accountability culture.
Maybe if the consequence culture you’re talking about is someone losing their job for their opinion, maybe that’s not a consequence that you should write off so easily. But there was an interview in Politic this past weekend that seemed to just completely erase the past six years. They were like, “Oh, we haven’t seen anything like this since 9/11 or McCarthyism.” It’s like, “You know 2020 and 2021 were the two worst years we’ve seen in our history in terms of professor cancellations.”
And I do point out that a substantial portion of that, at least in 2022, was from the right as well, but that we just went through a period that we can’t find any parallel to in the last 50 years since the law has been established on college campuses. And there seems to be some determination to just forget about it or not reevaluate it or take it seriously.
Nico: Yeah. What happened in 2020, after or during the George Floyd protests, was you had all these colleges and universities issuing statements. And then you had all these dissenting faculty who were targeted in many cases for their speech, or colleges and universities were trying to find something else they had done to bring them up on charges, disciplinary actions, in order to get them kicked off of campus. And I remember our campus rights advocacy department working overtime during that period.
And if you just looked at our case submissions between 2018, 2019, and 2020, it was like a hockey stick. And I feel like if you probably look at the months preceding the October 7th attack, where we already had elevated case submissions, you’re gonna see a similar increase in them. And Greg, you mentioned trying to sort truth from falsehood. That’s been a challenge for us as we investigate all these cases with heated rhetoric, particularly on X, formerly known as Twitter. It’s important that you just don’t at face value anything that’s alleged.
I remember there was this one video at one of the University of California schools where it sounded like one of the chants was, “Israel, Israel, you can’t hide. We want Jewish genocide.” When we did a little bit more digging, it was actually, “Israel, Israel, you can’t hide. We charge you with genocide.” It might not make a substantive difference from the protective speech analysis, or it might. It’s hard to know, and the audio wasn’t great. But those are just things that we need to double- and triple-check in any case, but particularly in cases where passions are running high.
Greg: Yeah. It’s like the fog of war effect.
Nico: Sure, yeah. Absolutely. And we saw this a little bit after or during the George Floyd protests, too. But Alex and Ronnie, you two are sitting in at our morning campus rights advocacy meetings, which we have every day, where we review the case intake, both those who submitted their cases at thefire.org but also things that we’ve discovered through following the conversation on X or following news reports. I’d like to hear from both of your first blush perspective on the moment, maybe Alex, starting with you, since we’ve already heard your voice.
Nico: And you are the director, of course.
Alex: Sure. So, I am surprised along with Greg and others at FIRE that we have not seen more cases come in specifically about speech around this issue. That said, we are incredibly busy, and I think generally tensions are higher on campus because of the Israel-Hamas situation. What I will say is, in hindsight, I guess it shouldn’t surprise me too much because of the level of division that there already is on campus around this particular issue.
So, normally, when we have a situation – we’ll take George Floyd or COVID or even abortion – there is sort of a prevailing popular view on most campuses. Typically, it trends progressive or ultra progressive. And so, colleges feel empowered to speak out on that one progressive viewpoint. George Floyd’s murder was bad, and we’re here to support students. And anybody who suggests otherwise might need to come into an administrator’s office. Or we are pro-vaccine with COVID. And if you dissent from that, then maybe you’re gonna have a problem. That’s sort of the overt or subject message going on there.
That said, with the Israel Hamas stuff, there are very passionate entrenched viewpoints with lots of people on both sides. So, I think what’s been really interesting is that administrators don’t seem to feel as empowered to come down strongly on one side or another. If you wanted evidence of that, there’s nothing better than the multiple statements that so many administrators have had to put out. Normally, it’s the one statement. They say their thing. We all go on with our day. But now it’s like, “Oh, well. Donors wrote us after the first statement.
So, now we’re putting out a second statement really criticizing Hamas this time.” And then the pro-Palestine people are weighing in, and then out comes Statement No. 3. So, it has been really interesting to see administrators kind of reap what they’ve been sowing in terms of coming down very strongly on a lot of these social and political issues one way or another. Now here we have a situation where it’s impossible to do that and make everyone or anyone really happy. And so, that’s why we’ve been encouraging them not to do that at all.
Nico: So, you have a divided campus in parts. Would it be safe to say, probably, that a majority of these student bodies, because they’re young people – and young people tend to be liberal or progressive – that they’re generally more pro-Palestinian than perhaps the donors or the alumni of the school. I remember I saw Harvard Harris poll that found that 51% of Americans aged 18 to 24 believe that Hamas was justified in its terrorist attacks on October 7th.
Meanwhile, you have all these letters that are being sent to these colleges or universities condemning them for not coming out more strongly in their condemnations of what happened on October 7th. So, you have a student body and a faculty that perhaps has a prevailing viewpoint that’s one way, and then you have an alumni and perhaps supporter base that’s another way.
And of course, you’re painting with broad brush strokes here, which is never entirely accurate, but that’s maybe the dynamic that people are seeing as they’re watching the headlines and seeing all these donor letter come in as well as all these student protests on campus, which seem to have this large number of students supporting the Palestinians in this conflict.
Alex: Yeah. I would say that if you look at the U.S., I would expect that there would be a much larger population of pro-Palestinian supporters on the average college campus. And of course, that goes way up when you’re talking about a much more progressive campus, the Wellesleys and the Smith Colleges and that sort of thing, and, of course, the Ivy Leagues, the Harvards and the Yales.
I will say, though, that there certainly are vocal populations of Jewish students. There are Hillels on many, many campuses. So, it’s definitely a much more unusual situation. But yeah, lots of pro-Palestine sentiments coming out of our universities. And I would say that those are the students that we are seeing get complaints about them. Students and faculty who have expressed pro-Palestine sentiments, they’re the ones that are getting reported.
Nico: Ronnie, can I ask you a little bit? We just had a blog post last week reiterating the line between protected expression and unprotected expression. We’ve seen some of these cases cut much closer to the bone of unprotected expression on campus than we typically do. And so, it’s even more important that we get the facts right, because any time you’re venturing into the category of unprotected speech, it’s a fact-intensive analysis.
We already mentioned, for example, the case of the faculty member who was alleged to have separated Jewish and non-Jewish students in the classroom, told the Jewish students to go to the corner, potentially, with their belongings. We don’t know. We’re trying to get the facts still. And then berating them, allegedly, about what’s been happening in Gaza Strip and Palestine and then comparing that to the Nazis and the Holocaust. But you also have situations where students are taking down Israeli hostage posters. We wrote about that as well.
We have situations where you have students allegedly – and the facts here are in dispute as well – barricading in other students in libraries. And then you have the situation at Cornell where someone made death threats, true threats, against some of the Jewish student groups or buildings or housing on campus. So, Ronnie can you talk a little bit about how we’ve been trying to sort that out in our case in take process?
Ronnie: Yeah. And kind of chaining off the question you asked Alex as well, if there’s anything that’s been driven home by the current situation, it’s the importance and difficulty of being principled in the application of the principles surrounding free speech. And that’s both in terms of making sure that you are applying them in an even-handed way, especially when emotions are running so high. I mean there’s a lot that is being said, that is being performed, that is being put out there on campus that is very upsetting to a large number of students on all sides.
And you’re reminded of the, for example, First Amendment jurisprudence where it talks about how the First Amendment protects speech that is shabby and upsetting and difficult. And it’s important to ensure that you keep the starch in those standards. At the same time, as you said, we just put out a post last week that talks about not only the importance of maintaining the doctrinal lines in the various categories of unprotected speech, but also when speech crosses those lines, enforcing those doctrines as well, whether it be true threat or incitement or fighting words.
Because if you have these categories, and you treat them as if nothing can ever really fall into them, you don’t really have any categories, and you don’t have a doctrine where speech can ever be punished. And that’s not the standard. And what we’ve been seeing a lot on campus in some of the cases that come in is, for example, like you said, in Cornell. That’s the kind of thing that when you say you are going to carry out murders on campus, that’s a true threat. I mean it’s directed towards a specific target. It is a present intent to do something.
Whereas in other cases, things may feel or sound threatening, but because they don’t meet the standards – We had, for instance, a professor who went on Twitter and talked about going after Jewish journalists, for example. And while that is wildly un-free speech friendly, and it is disturbing and troubling, it didn’t satisfy the full standard for what constitutes a true threat, necessarily. And the default is if something doesn’t fall into a category of unprotected speech, it is protected speech.
And therefore, at least insofar as government actors, they are circumscribed and, in some instances, essentially prevented from being able to sanction or punish or otherwise target that speech. And so, it’s very important, I think, to A.) I think a little bit steel yourself as a free speech advocate to recognizing that some of what you’re going to be advocating protection for or tolerance of is going to be very upsetting. On the other hand, you also have to be principled in allowing speech that crosses the lines into the various categories where action is permitted for that kind of response to go forward.
Nico: Well, you hear a lot about this chant that’s common on and off campus, which is, “From the river to the sea, Palestine will be free.” And there have been allegations that that would be unprotected speech because it essentially, critics would argue, calls for the destruction, potentially violent – I’m assuming that’s assumption – the violent destruction of the state of Israel. You’ve heard it alleged that it’s eliminationist language. Which if you’re a Jewish student, or you have a Jewish background, there has been a history of the use of eliminationist language. So, Ronnie, how do we think about that phrase and when it may or may not cross the line into unprotected speech.
Ronnie: Well, it’s fairly well established in our jurisprudence that advocating violence philosophically or the need for violence is protected if you are not directly inciting imminent violence of imminent lawless activity. It is protected speech to philosophically say that violence or rising up or whatever it happens to be is a necessary solution. And that can be whether you mean it literally or hyperbolically. So, I can envision situations where given other factors – For example, if you are chasing someone across the quad and yelling that at them, then, yeah, that could rise to the level of a true threat. Or if you’re doing it every day to the same person, it could rise to the level of discriminatory harassment.
But the fact of the matter is the same would be true if you were chasing a Jewish student across campus, shouting, “Hava Nagila,” to them. It’s not the content of what you’re saying. It’s the other contextual factors that make it threatening. The slogan, for lack of a better word, that you asked about, standing alone by itself, it may well be abhorrent. But as a matter of whether it’s protected speech in the abstract, that is fairly well established.
Greg: I also want to point out something else that’s protected about that slogan. It’s also protected to claim that that slogan really means that you want a peaceful, multiethnic, democratic society from the river to the sea, even if that seems a bit intellectually dishonest. That was one of those things that I saw recently. Yeah. But is it protected? Absolutely. But Ronnie is right. That’s one of the interesting things about threats analysis is that it’s always contextual. Essentially things that might be protected left entirely to themselves in certain contexts, if it’s understood by a reasonable person to be conveying an intention of bodily harm or death, well...
Nico: And Greg, I’m glad you chimed in, because I wanna talk about some of the things we saw in the first days after October 7th. The first things we saw were letters from donors, alumni to colleges and universities demanding that they condemn the Hamas terrorist attack on October 7th. And meanwhile, you had students writing letters of issuing statements that suggested support for what Hamas did. For example, at NYU Law you had the student Ryna Workman, who was president of the NYU Student Bar Association, sending a statement to that association claiming that Israel bears full responsibility for this tremendous loss of life.
And Ryna’s job offer from the law firm Winston & Strawn was rescinded as a result. You also had the letter sent by, I believe, 34 Harvard student organizations that said that they hold the Israeli regime entirely responsible for what happened. And then in the wake of that, you have a bus circling campus that’s identifying some of the students who were potentially involved in the drafting of that letter or signed on to that letter. The donor letters continue to come.
Just this week, or maybe it was just yesterday – we’re recording it on, what, November 6th – Bill Ackman the billionaire hedge fund manager wrote a long letter that he posted on X to the Harvard administration that called for them to subject students to disciplinary actions if they’ve been chanting, “Intifada,” and other eliminationist statements. Also said the university should review the students’ Slack message boards to identify those students who have made antisemitic statements or shared antisemitic imagery. These students should also be referred to the administrative board for appropriate disciplinary action.
Then he raises kind of a double standards point that I’d like you, Greg, to maybe address as well. He said, “How would Harvard respond if a trans student attempted to walk by a anti-LGBTQIA demonstration on the HBS campus and was subject to the same abuse that the Jewish HBS students” – I assume that refers to Harvard Business School – “experienced at the Free Palestine demonstration on October 18th. How would you respond to a Harvard white supremacist protest where students shouted, ‘Tulsa, Tulsa, Tulsa from the Atlantic to the Pacific. America should be free of black people.’” So, Greg, I apologize for the compound question, but I was wondering –
Greg: You have an hour and a half to go to all the issue spouting in that. So, you’re asking specifically about the statements, or where would you like me to begin on that one?
Nico: Well, you have these donors and these people off campus who are rescinding job applications saying students should be investigated for what I think at FIRE we would say is protected, even if offensive, speech. You have buses or vans going around campus with LED screens identifying students potentially for punishment. So, you just came out with the book called The Cancelling of the American Mind.
Greg: Yeah. Those are three long answers. So, Part 1, the initial statements universities issued. FIRE supports the Kalven Report. We like institutional neutrality or often sometimes called institutional restraint. At the same time, people who said, “Oh. Now you’re arguing for institutional restraint on the one topic that you think might get you in trouble with your faculty administrators and some of your students,” and calling BS on that I thought was actually entirely fair. We want the outcome of schools adopting the Kalven Report.
But schools that never did this in the past and comment on every other major event that ever happened suddenly being silent or extremely restrained on this topic – partially because taking a strong anti-Hamas position would be, frankly, unpopular among some of the most aggressive activists on campus – was something that deserved to be called out. And one thing that I do want to point out here – and Jon Haidt pointed this out on his Substack – that to a degree cancel culture explains the behavior or university president.
University presidents, and a lot of the ones I know the most about, are generally pretty pro-Israel and definitely horrified by the terrorist attacks. And they were scared of their own activists, of their own professors of their own students to actually say what they really think. So, to the extent to which donors were saying, “Make a statement about this,” one of the things the donors knew was that in many cases it was the university president who wanted to say something about it. They were just too cowardly to say that.
When it comes to the statements, the letter that the Harvard people signed blaming Israel entirely for the attacks while the attacks were still going on, I can definitely understand people being a little horrified by that because the timing was pretty shocking. In terms of the response from employers saying that they didn’t wanna hire somebody who’d immediately sign that, the most you can do in a situation where the First Amendment doesn’t apply is make a strong argument like we do in Cancelling of the American Mind for the principle of everyone’s entitled to their opinion. And we think that we’ve gotten too far away from some of the norms or a free society.
Now, first of all, of course, a private company can hire whoever they want. And we really want them, however, to consider free speech culture and to consider the idea that my employees should be allowed to have opinions as well. Do I think that that could overcome a lot of the cases we talk about in Cancelling of the American Mind, where a journalist retweeted a off-color joke? I hope so. Is that necessarily gonna lead a Goldman Sachs to wanna hire someone they think actually might be antisemitic or couldn’t necessarily work with Israel as a client? It might not be enough, but we still have to make the argument for, all things being equal, people are entitled to their opinion.
Nico: This is just a consideration that we want people to have when they’re assessing the fallout. Right? And up until this point, your book speaks to this considerably. It’s like people aren’t thinking about what it would mean for a culture where all it takes is a mob to get angry at someone for an opinion that’s unrelated to their job to get them fired. Right?
Greg: And the point that I made on a Reason podcast that I keep on making is think about what society would look like if we have a strong First Amendment, but you can’t have a job and honestly say what your opinion is. And that shouldn’t sound too far-fetched, because that’s what it started to look like in 2020 and 2021, that essentially the company has a political point of view, and you need to agree with it, or you could be in big trouble, or you could lose your job.
And I don’t think that that’s necessarily healthy. Well, actually, I don’t think that’s healthy. But all the time being clear, they have the right to, but we want people to think about free speech culture as well. When it comes to the activity by accuracy in media with the truck driving around Harvard with the pictures of some of the students’ names on them – And pictures, I didn’t like that. I think that’s targeting the students. It is something that I don’t think is a good thing to do. That being said, there have been a number of students calling this doxing. And doxing doesn’t have a specific legal meaning, but it usually means revealing information that could actually get someone really hurt.
And so, usually, I always take it to mean releasing someone’s home address, phone number, that kind of stuff. Just releasing someone’s picture, though, that can’t possibly be doxing. And I’ve seen this expectation develop on campus that if you’re shouting someone down, and someone takes a video of it, that you can’t actually post that because that would be doxing the student. And it’s like, no. That would mean a weird level of required anonymity. I have to respect your anonymity as a censure, as someone who’s doing something really kind of terrible, and I can’t show, unlike any other citizen in the entire country gets.
So, I do think that some of the claims of doxing are just wrong. And by the way, even doxing, revealing public information, is still actually First Amendment protected. I just think it’s not a commendable behavior by any stretch of the imagination. Now, people ask then, “Well, but they’re getting death threats.” I’m like, “Then go after the people doing the death threats.” Going after the people doing the harassment, that’s not protected. And actually, I’m pretty aggressive on threats. I actually do prosecute those kind of threats.
When it comes to the situation with cancel culture related corporations, we try to factor in – and we do this more in the appendix to not bog it down too much – some of the analysis of public employee law. So, there are different rules if, say, you’re a spokesperson for an organization. Basically, if you’re a spokesperson for the president, you don’t have additional free speech rights. You can’t say, “Oh, with my non-spokesman person hat off, I completely disagree with the president.” You’re going to lose your job.
And within the law, there is the Pickering standard which we think stands for, more or less, the principle that you should have freedom to comment on issues of public concern in your private time. But even that, in public employment law, they will factor in things like, let’s say, we find out someone’s a raving racist. Can they not fire them if they’re afraid that they can’t work with a black employee? So, there’s existing law on this that actually makes it a more common sense standard.
But the bottom line for us when we’re simply arguing free speech culture is that we need to, and we should, try to take seriously the fact that people are going to have opinions that you might disagree with who could still be excellent employees. But two more caveats on that, though: 1.) I think that the people who signed... If you don’t wanna hire someone because you think they signed that letter, definitely, I think you should check in with them. Because a lot of people who actually were accused of being on the letter didn’t even see the letter, let alone know they were on it. So, you might be falsely accusing someone. And you can –
Nico: Yeah. Can I just say one thing on that, too?
Nico: Because I used to be the president of a student organization on campus. And to the extent you think student organizations have everything together and are very organized...
Greg: Oh, yeah. Nope. [Inaudible - crosstalk] [00:38:27]
Nico: They aren’t. Yeah.
Ronnie: Or monolithic.
Greg: Yeah, or monolithic.
Nico: Or monolithic. So, I was surprised, actually, when I saw the letter come out, because I think it was just a day or two after the attacks that they could organize the membership of all these 34 different student organizations to get their feedback on whether they should sign the letter. This is a monumental undertaking and very impressive if it could actually be accomplished.
So, when I saw that 34 student organizations signed on, one of the my initial reactions were like, “There are gonna be some very displeased students to see that their organization had signed on to this, when you can’t really presume that they had.” And then in the days afterwards, you heard that some of them hadn’t even seen the letter.
Greg: Yeah. And those are the two caveats. I think the best practice, particularly if you’ve extended an offer to someone, is talk to the person directly. Give them a chance to defend themselves, essentially, and find out, most importantly, is this person being accused of doing something they didn’t even do?
But on the other hand, one thing that I have said a lot is I think we’d be living in a much healthier country if we drew less of our ruling class from elite colleges. And partially because a lot of companies, after coddling the American mind, have to come to me and Haidt and said, “The new crop of employees want my organization to take political positions on every topic, and they want me to fire people who don’t agree with their politics.”
Nico: Alex, I wanted to ask you. I think it was just the day before the attacks. You were at the University of Chicago for a symposium on campus free speech where you had discussed extensively the Kalven Report and told the audience that FIRE more or less endorsed that. Quite the timing, I guess, just before the October 7th attacks.
For those of our listeners who aren’t familiar with the Kalven Report, it’s a statement issued by the University of Chicago in, what, 1967, if I have my years correct, where they essentially said that the strong presumption should be against the university taking stances on social and political issues and that the university is the host and sponsor of critics, but it is not itself the critic. So, in other words, it facilitates the dialogue and criticism that you want to see in society writ large, the marketplace of ideas, but it is not itself the critic or a voice for any particular social or political issue.
And we’ve seen, obviously, the University of Chicago, if I’m not mistaken, the institution itself hasn’t issued a statement on the attacks. And I believe that Stanford initially took this position, too, as the result of the position it had articulated and the wisdom it articulated around the Kalven Report and the wake of the Judge Duncan shout-down earlier this year. So, can you talk a little bit about that appearance, Alex, and what you’re seeing from colleges and universities with regard to institutional neutrality?
Alex: Sure. Well, I had Paul Alivisatos, the president of the University of Chicago, fist-pumping in the front row of the discussion when I said, “Actually, you guys here, folks, you’ll hear it here first. FIRE is planning to adopt or formally endorse the Kalven Report in the coming days,” because it had been a conversation at FIRE since our inception. We always though that there was wisdom to Kalven. There’s wisdom in the idea that universities will focus their resources on supporting students and faculty discussions rather than taking political and social positions themselves.
That said, we’re a free speech org. And public and private school administrators have their own expressive... They are able to express their own viewpoints. Administrators are college presidents. They can put out statements. They have a right to do that. So, we don’t love, as a free speech organization, to come out hard and say, “You shouldn’t be speaking, president of X university.” That said, it has become increasingly clear in the last several years the conversation at FIRE, there’s been a big uptick in probably the last three to six months saying we really should take another look at Kalven.
We think that given the climate on American universities on university campuses these days, it may be really difficult or even impossible for universities to create an ideal climate for free expression without removing themselves from the debate that students and faculty are having. And of course, we see diversity initiatives, inclusion initiatives, equity initiatives. They’re incredibly popular on many campuses. We don’t take a position on that, but I think a lot of people would say that’s for good reason. We want –
Nico: Well, unless they serve as political litmus tests, for example, like the DEI statements that are often required of faculty during their review process or in the hiring process.
Alex: Yeah. So, I guess our position has always been: Look, you guys can do that, as long as it doesn’t cross the line into suppressing student or faculty views. And we have seen it do that repeatedly. So, we definitely have DEI type initiatives on our radar. But all that is to say, in the context of Kalven, that we have seen many administrations centering DEI type initiatives to the utter exclusion of core student and faculty rights.
And what we’ve been in the business of doing for the last several years, and particularly since October 7th, is reminding universities that these two things need not be intention, but baked into a lot of the diversity type initiatives is this idea that suppression of certain speech that is not sufficiently antiracist or inclusive must be suppressed.
And so, we are telling schools, “Look. You need to be starting from a place of institutional neutrality, of student and faculty rights are at the core of our educational mission, rather than centering these diversity type initiatives which can force administrators to be considering censorship as a tool in their toolkit.” And we are telling them no. On public campuses, that is unlawful, also on private campuses that promise free expression. So, we’re trying to move that conversation back to the core mission of a university.
Greg: Yeah. And there’s a word that a lot of people who are used to First Amendment work off campus, but don’t know as much about academic freedom, tend to miss, and that’s orthodoxy. It’s very important for schools, if they’re supposed to be actually institutions for the discovery of truth by chipping away at falsity, one thing that can really interfere with that is having an orthodoxy, something that everyone believes and is afraid to question. And unfortunately, we have campuses that have a lot of orthodoxies these days.
And one of the mechanisms by which you establish an orthodoxy is by having someone at the very top of the institution saying, “This is our institutional position on the following things.” And I watched this happen a lot. Because at first, I wasn’t that pro-Kalven. And then over the years seeing professors go, “Okay. We just came out in favor of vaccines, for example, but I have some issues with, actually, these particular vaccines. Am I now putting my job at risk for challenging the orthodoxy of this particular school?”
So, we started to see the problem with the bully pulpit that the president’s office could use as being something that did impose orthodoxies and give people the message that this is a place that has very definite ideas about what is true prior to you actually looking into it. And when it comes to the DEI administrators, this is something that people really need to understand. It’s that even in books that I otherwise very badly disagree with, like Michael Bérubé’s and Jennifer Ruth’s It’s Not About Free Speech. They talk about DEI administrators and the investigations that usually happen behind the scenes into speech that’s allegedly offensive.
And when it comes to a lot of the big cases – I didn’t realize this until I asked Nicholas Christakis, that the crowd that surrounded Nicholas in 2015 at Silliman, there were DEI administrators in that crowd. The professor who first sounded the alarm against Carole Hooven at Harvard, that was a DEI administrator.
The administrator who met with students for hours in advance of the Duncan shout-down – then the Duncan shout-down lastly exactly 10 minutes, and then she got up and read a preprepared speech – DEI administrator. So, when people talk about DEI administrators as being... when there’ve been plans to actually limit the number of employees that you have, you also gotta keep in mind that sometimes these are net negatives for the environment for free speech. Sometimes, they’re the ones actually leading the charge on getting professors in trouble, and sometimes they are little orthodoxy offices.
Nico: I’ll never forget FIRE cofounder Alan Charles Kors once saying, I believe, in a video, short documentary that we made about him that speech codes depend for their very existence on the exercise of double standards.
And Alex and Greg, when you guys were mentioning a lot of the censorship that we saw in campus surrounding COVID, it made me think of University of San Diego law professor Tom Smith who, for nothing more than saying on his blog post that those believe the coronavirus did not come from a lab in Wuhan were “swallowing a whole lot of Chinese cock swaddle,” he got brought up on an investigation for that, was accused of being anti-Chinese.
So, I think if you are a member of a campus Jewish community, or you care deeply about Jewish issues or the state of Israel, and you see some of the language that’s being expressed or some of the protests on campus that are very vehement in using what’s perceived as very offensive language, you say, “Okay. The guy who said that the coronavirus might have come from a lab in Wuhan, which ultimately was a position that the State Department and other United States agencies believes is likely or at least possible, he gets brought up on an investigation but these other students don’t.”
To be clear, FIRE thinks a lot of this rhetoric is protected regardless on both sides, but it’s just this exercise of double standards that you see that I think has pissed off a lot of these donors. Ronnie?
Ronnie: Well, it’s funny. You mention the cock swaddle thing now. And from where we’re currently sitting, it seems almost quaint. You mentioned orthodoxy. And you guys work with me. This isn’t a surprise to you. Anyone’s who’s listening that knows me, this isn’t gonna be a surprise. I have a very complicated relationship with my Judaism and having being brought up Jewish that’s partly wrapped up in my feelings about religion generally.
But when we talk about combatting antisemitism, I wonder, sometimes, what does that mean? Does it mean stamping out antisemitic discrimination where you are excluding people, where you are like the Harvard student was walking across campus, was getting jostled and manhandled going across campus? And if that’s what we’re talking about, those are obvious yeses. When you’re talking about stamping out antisemitism, and what you’re really talking about is stamping antisemitic speech and thought and making it so that they don’t exist, that becomes more complicated.
Because even though it is offensive and abhorrent to some people and very upsetting, and justifiably so, you’re talking about restricting ideas and concepts. And I have to be honest, I don’t think that claiming the moral superiority and purporting to punish wrong thing and thought crime is likely to defeat any kind of -ism, whether it’s racism, antisemitism, sexism, extremism, whatever it is.
Telling people, “You can’t think what you think. You can’t feel what you feel about...” and you fill in the blank as appropriate: people with different color skin, people with different religious beliefs, people who have different geopolitical priorities than you do. I don’t think that that’s persuasive. And so, there’s a big difference between proudly standing up for yourself and being diligent and trying to persuade those people that those ideas are not ideas that are worth holding onto versus silencing other people to prevent them from at least outwardly manifesting that that’s what they think.
And that’s when you start talking about what’s the orthodoxy here that is being advanced? And I think that’s where you kind of fall into a danger zone of allowing censorship to do the work that persuasion ought to be doing. I think the model should be someone like Daryl Davis, not the thought police. And for those who don’t know, Daryl Davis was a black musician who –
Nico: Is. He’s still alive.
Ronnie: Sorry. Well, okay, is a black musician who would sit down and speak one on one with members of the Klan and confront them with the ideas that the Klan holds and that they hold, and ultimately was able to claim to have over 200 Klansmen turn over their robes to him and actually changed minds. And I think that’s the model we want to be following, because that’s the kind of change that endures. Telling people, “Okay. You are too vocal in your dislike or hatred or in your views. Go over there and be quiet,” I don’t know what you’ve accomplished other than insulating the hearers from hearing things that might upset them. And I don’t think that’s the appropriate goal.
Nico: Ronnie, I’m gonna stick with you, because there are at least two other topics that I want to get to before we wrap up here. We’ve been talking about a lot of concepts right now or questions related to speech that can be fact-intensive. Is this protected? Is this not protected? One example of censorship that we’ve seen on college campuses – it’s pretty clearcut – involves the Students for Justice in Palestine student groups.
There was a letter sent by the State University System of Florida Chancellor Ray Rodrigues to Florida public college presidents in which he essentially alleged that the Students for Justice in Palestine chapters were providing material support for terrorism as the result of a day of resistance toolkit that they had on their website. And he only kind of quotes one line to say that this qualifies as material support. The toolkit said, “Palestinian students in exile are part of this movement, not in solidarity of this movement.”
And this movement refers to the operation Al-Aqsa Flood, which is a resistance movement that the Hamas terrorists were seen to be a part of. And then you had the Anti-Defamation League. And Brandeis sent a letter to 200 college presidents across the country telling them that they should investigate their students for Justice in Palestine chapters for material support for terrorism. So, Ronnie, I was wondering if you could unpack what it means to actually provide material support for terrorism, and whether this toolkit that was proffered by the Students for Justice in Palestine national group qualifies as material support.
Ronnie: Yeah. So, material support for terrorism or extremism is not simply philosophical support. Right? I mean it requires an actual provision of something that advances the specific cause in engaging in the terrorism. And I feel kind of like I’m stealing Alex’s thunder a bit here, because she very eloquently wrote to the presidents of the state universities in Florida to say, “I hear what you’re being told from essentially your boss, for lack of a better word, but you cannot constitutionally do this without evidence that there’s more than these student organizations advancing ideas.”
And so far as I know and to date, I don’t think any state official in Florida has thus far cited anything that would in fact constitute material support. And as a result of what is really just advocacy, there is this idea that you should investigate these student organizations. First of all, in Florida, the idea is that you should derecognize them altogether. And that, of course, in response to pure advocacy, is not constitutional.
But there’s this idea that you should go around the country and investigate all of these student organizations on this suspicion of, what, alliance, affiliation, having a philosophical support? And that also, again, it comes back to me as feeling like a bridge too far, because you’re simply trying to stamp out not material support of violence but rather something that’s more philosophical. And I guess I should let Alex also answer a bit, because she –
Nico: Well, let me just quote here the federal statute on material support. It means any property, tangible or intangible, or service including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice, or assistance, safe houses, false documentation, or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials. I guess if you were gonna try and read into that statute something like philosophical support, I guess it would be an intangible service. But we have case law on this, Holder v. Humanitarian Law Project. So, Alex, what’d you say in the letter?
Alex: Well, I don’t know that I can go too far beyond what Ronnie said in terms of summarizing things, but I will just say there had been some suggestion among legal commentators, pundits, that maybe it’s possible that the state of Florida has some kind of evidence that one of these groups engaged in actual material support.
And let me just say, I think we all, at least at FIRE we know damn well that if the state of Florida had evidence that some SJP chapter was DMing their friends over at Hamas, they would absolutely be prosecuting them rather than just suggesting that the chapters be shut down. I think we all know what the state of Florida is capable of. And if they had any evidence, they would be running with it. I mean this is McCarthyism again. What would it be like if, during the Vietnam War, for example – We’ve seen this over and over again.
If states were saying, “Why don’t you go investigate your Students for a Democratic Society, or why don’t you go investigate students who are protesting against the Vietnam War? Because we think that they’re sort of allied with interests that conflict with ours.” It’s nonsense. And certainly, if there’s evidence of provision of material support, that’s a whole ‘nother thing. But this is pure speech. We have seen nothing to the contrary. And if they had evidence, they would have coughed it up by now.
Greg: Yeah. It’s something about the idea that we think you might be funneling money to Hamas. So, just disassociate and rebrand yourself. Its’ like no, no, no, no, no. If you thought someone was actually committing a felony, which it would be, you absolutely would behave in a different way. Now, if they’re able to produce something, if there is some hidden information that we don’t know about, they should reveal it. Because I do also want to remind Florida that’s an incredibly serious charge to be making, and you seem to be basing it just on hortatory language.
Nico: Yeah. The politicians haven’t necessarily covered themselves in glory when it comes to free speech amidst this conflict. Right? You had Trump on Truth Social saying that all these colleges and universities should expel the pro-Palestinian protestors. Unconstitutional at a public college. You have DeSantis, Tim Scott, Marco Rubio saying that pro-Palestinian speakers should have their visas revoked. Unconstitutional. So, again, they haven’t covered themselves in glory.
I just wanna wrap up here by asking about one kind of conduct that we’ve seen a lot on X, formerly known as Twitter, which is the tearing down of these Israeli hostage posters. I don’t quite understand the tactic. But Alex, for example, we saw at NYU – I think it was outside of Stern – two students tearing down one of these posters. You’ve seen other people confronted in videos for tearing down these posters. Greg, this isn’t unusual in FIRE’s history, that is tearing down other people’s posters because you disagree with the message of those posters. Is tearing down posters protected expression? Because some people online are arguing that it is.
Greg: It’s the physical manifestation of a heckler’s veto, as I’m concerned. I mean it’s profoundly anti-speech and censorial. Unless there’s something in the posting policy at some school that allows random individuals to take down somebody else’s poster – P.S. there isn’t – all you’re talking about is destruction of somebody else’s property. In fact, it happened right here in D.C. at George Washington. And someone was caught on video taking down the posters, and it just so happened to be caught by the person who had put up the posters. And there was video, basically.
And he said, “Why do you think it is appropriate to take down these posters of kidnapped Israelis?” And basically, that it’s advocacy, it’s pro-Israel advocacy, which obviously students have every right to engage in. And ultimately, the student tearing them down had no answer. When I say they had no answer, it wasn’t that they gave an answer, and it was not a valid answer, or it was an empty answer. Literally no answer. Tearing down those posters is not free speech. You want to put up another poster next to it saying, “That poster is bullshit,” you know the Joe Pesci poster, you go right ahead. But silencing someone else is not free speech.
Nico: Well, I think we have to run folks. I know a couple of us have some meetings. I appreciate y’all taking the time –
Greg: Great. [Inaudible - crosstalk] [01:03:11].
Nico: Yeah. Yeah, right. I appreciate you all taking the time to have this discussion. I’m sure it’s not going to be the end of this conversation nationally nor within FIRE. Again, Greg Lukianoff, president and CEO of FIRE; Ronnie London, our general counsel, and Alex Morey, the director of our campus rights advocacy department. I am, as always, your host, Nico Perrino.
This podcast is produced by Sam Niederholzer and myself. It’s edited by my colleagues Aaron Reese and Ella Ross. You can learn more about So to Speak by subscribing to our YouTube channel. This conversation is recorded in video as well. So, if you prefer to watch it that way, head on over to our YouTube channel. Most of our episodes are put there.
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