So To Speak Podcast Transcript: Academic Freedom Alliance with Keith Whittington

March 25, 2021

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Okay. 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. As always, I am your host, Nico Perrino.

Our guest today has been on the show before, so he’s probably familiar to some of you. He is Keith E. Whittington, and he is the William Nelson Cromwell Professor of Politics at Princeton University. He’s also the author of Speak Freely: Why Universities Must Defend Free Speech, and since his last appearance on this show, he joined FIRE’s board of directors, and just recently launched the Academic Freedom Alliance, which is a union of faculty members dead set upon coming to each other’s defense when their expressive and academic freedom rights are violated. Sometimes, as I understand it, in the court of law, and other times in the court of public opinion.

Professor Whittington, welcome back onto the show.

Professor Keith Whittington: Thanks for having me. I really appreciate it.

Nico: And congratulations on the launch of AFA.

Keith: Thanks. It felt like a long time to get to that point. We were working on it behind the scenes, and it’s just a remarkable number of steps one has to take to get an organization up and running. But I’m very glad to have it publicly launched, now, and to really be able to get to work.

Nico: Well, a lot of the stuff that I imagine goes into creating an organization – I’ve never created one myself, before. I’ve created a department within an organization. But I imagine a lot of it is administrative, like getting your tax-exempt status, getting your email set up, getting… Just kind of boring, mundane stuff. Not a lot of it is the mission, so to speak.

Keith: There is a lot of that. Just getting the forms in place, getting the website set up, the email set up, as you say… There is a remarkable amount of that. It seems like every task I ever undertake, all that takes longer than one expects. But then, it also took some time just to try to think through the organization, and what we were trying to do, and how we were going to organize it, and what’s the best way of proceeding was, and then it took time to sort of talk to people about joining the organization, and… That, at least, feels much more like time well spent than the effort of “how do we get the website up and running?” So…

But yeah, I think, at the end of the day, it made a difference. I’m very happy with where we are, now, and I think we’re in a good position to be able to be helpful.

Nico: And all of it being done, of course, amidst a pandemic. What’s your life and teaching environment like right now? Are you still all remote?

Keith: We are pretty much remote. So, Princeton allowed students to come back to campus in a restricted way. So, there’s some set of them that are living on campus. There’s some set of them who are living in the larger Princeton area. And then, some of them are just living all over the world. But our classes are very restricted, and so, almost all the classes at Princeton this semester are still virtual.

In the fall, we’re hoping that we’re sort of back to something that’s basically like normal, but this semester, it’s very virtual in contrast. And so, I’ve been going a full year, now, where I basically work entirely out of my home office.

Nico: What’s it like to teach in a virtual environment? And I guess, for the purposes of our conversation, given this is the free speech podcast, how did the dynamics change in conversations or dialogues surrounding issues, in particular, contentious issues? I imagine there’s not just the hesitancy that might come in discussing contentious issues, but there’s also the worry that what you’re saying might be recorded. You can’t read facial expressions as easily. What have you learned over these past 12 months?

Keith: Yeah, no, I think there’s certainly some difficulties with doing things virtually. I do think the concern about people being recorded is a real risk, and we have seen some faculty get in trouble from the fact that their classes are being recorded. Of course, some schools are automatically recording the classes to make them available to students who can’t attend, and things like that. And so, we’re getting sort of some routine recordings that are occurring.

Most of my classes do not get routinely recorded that way, but it’s just easier for any individual participating in a class to record what’s going on when you’re in this virtual environment. And so, I think there’s a heightened risk that stuff might be exposed to the public, and I think that can make people a little wary about what they want to say.
I mean, I think the other sort of more immediate challenge of doing a lot of these things online is you don’t have as much opportunity to get to know people. The personal interaction, even in the classroom itself, in addition to sort of the stuff that occurs outside the classroom and as you’re entering and exiting classes, and the like… You miss that. And so, there is a bit of a concern that people just don’t feel as comfortable with one another to engage in conversation.

I think we’ve had pretty good luck, for the most part, in the classes I’ve been doing. That students do get comfortable with one another fairly well in this virtual environment, that they get engaged by material and start interacting… The conversations are not quite as free flowing. You have to orchestrate the questions and answers a little more.

Nico: You have that awkward, where you’re – which we’ll probably have during this podcast. Where you’re trying to interject, but there’s some latency in the bandwidth, and…

Keith: And it’s just much tougher when you’re talking six, seven, twelve students, as opposed to two people in a conversation. Right? So, a little tricky, even with just a couple of people doing it this way, but… Yeah, you get 12 people, and it does require a little more management, I think, to get people sort of in and out, because otherwise… You can pretty quickly wind up talking over one another, and have a lot of awkwardness making that work.

Nico: We at FIRE, last year, looked at our kind of pilot college free speech rankings, which is based on a survey of 21,000 students at 55 colleges across the country. And we’re expanding that this year to 150 colleges. And we’re tweaking the survey based on responses and critiques we received, but also based on the changing environment, of course, which is the pandemic. And we asked students in the survey, “Are you fully remote? Partially remote? All in person?” And also asked them whether they feel like, if they have the previous experience in person at a college campus, whether they feel like it’s more difficult to have open and honest conversations.

And the early data that we’re receiving from about 4,500 respondents is that it’s split. It’s like a third think it’s easier, a third think it’s harder, and then a third just don’t quite know or think it’s about the same. So, we don’t know what to make of that.

Sometimes, when you want to talk about data, it’s easier if it’s all pointed in one direction, but when I think about having difficult conversations and talking across lines of difference, I feel like the more you know someone, the more you can see them, read their facial expressions, get to know them outside of the context of that conversation, the more presumption of good will you bring to the discussion. And that’s why I think Twitter, for example, is such a cesspool, you know? It’s completely anonymized.

And of course, when thinking about that, you can think on the spectrum. Twitter being over here, in person conversations over here, and then these sort of digital conversations somewhere in the middle. So, I imagine… I don’t know. I think we’re still at the point where we’re trying to learn about what the outcomes and effects of this are, but I just have to imagine, instinctively, that it would be more difficult.

Keith: I think it’s got to be really hard for first year students, in particular, and I have not taught many first-year students during the course of this, but those are the people who really have no background to fall on. It’s their first exposure to a college-level class, in many instances, and so… They don’t know what to expect, in general, but they also don’t know the other students at all, right? And they haven’t had the opportunity to start getting to know the other students, whereas, people who have already at least spent a year on campus, even if it was the disrupted year of last year…

You at least know people to a greater degree. You know the campus environment more generally. You do, then, as a consequence, have some more collegiality that makes it a little easier to expect that there’s going to be ongoing interactions with people, at least, and you can draw from that a little bit.

I have mixed reactions, I think, a little bit, in thinking about the sort of assumption of good will that goes with this. I do think that is a problem on Twitter, for example, and social media where you’re having these one-off interactions. It’s very easy to assume bad will on other people’s part. You don’t have any kind of ongoing relationship with people, and so, it’s possible to behave pretty badly in that context and not have the kind of repercussions you might have in a normal environment, where you have repeated interactions with people.

On the other hand, I went to a very large school as an undergraduate. I went to University of Texas at Austin. One thing I liked about that environment was, in some ways, how anonymous you were. And so –

Nico: Yeah. I went to Indiana University, which is…

Keith: Right.

Nico: Not as large as UT Austin, but almost. I think, 30,000 undergrads.

Keith: Yeah, me, too. So, a lot of the – I mean, some of the classes were not like that. I was taking the same classes over and over again with people in part because I was part of some smaller program, so where it’s the same students who are sort of put together to go through multiple classes. But in a lot of instances, I’d walk into a classroom, and I would never see those people again. I wouldn’t see them outside of class. I had no larger interaction with them.

And one consequence of that was I didn’t worry as much about what they thought, and what the consequences of what I might say in that context is. One challenge, I think, for students at a very small school like Princeton is that they know all those people who are in that classroom. They’re going to continue interacting with them.

On the one hand, that can allow you to say, “Well, I know this person in another context, and I know they’re generally a person with good will. And so, I’ll be charitable about how I interpret what they say.” On the other hand, it also means if you say something particularly embarrassing or particularly controversial… That’s going to carry with you for the rest of your four years, potentially, and people aren’t going to let you forget it.

And so, it can make people, I think, somewhat cautious about what they’re willing to say, because the weight of what they say seems particularly heavy in that kind of context, where… Even if they don’t think it’s going to be recorded, they nonetheless know that there is a… that this has consequences outside the immediate context of the classroom, and people are sort of second guessing themselves to some degree by worrying about what are people going to think because of this thing I said in class this one time.

Nico: Yeah. That’s actually one of the findings of our survey, is that… Students are primarily concerned – Or I shouldn’t say primarily. Largely concerned about what their peers think of them, and that drives a lot of self-censorship. And there’s only so much you can do about that, of course, because you need… We, at FIRE, adopt the strong student model, which is that you’ve got to be strong enough to live with these freedoms. You have the freedom to speak out, but you also need to be strong enough to deal with the critique.

But now, I think, is actually a good time to get into the AFA, because last year was a heck of a year, and we were hearing reports from faculty and students across the country who were self-censoring, who were facing punishment for speaking out. You said you’ve been working on this a long time. I assume the impetus came last summer, when FIRE was seeing hundredfold increases in its case intake, and faculty left and right were worried about the environment for academic freedom and open discussion. What led to the creation of AFA?

Keith: Yeah, our conversations about it really began before that –

Nico: Oh, interesting.

Keith: – although certainly some of our recruitment and our conversations with people joining the group were coming after that. But… In some ways, a group of us at Princeton have been talking for several years, now, about sort of the larger free speech environment, how students were thinking about free speech, not only in sort of this specific context of campuses, but also more broadly. It’s part of what led us, then, to want to adopt the Chicago statement to sort of contribute to that national conversation about free speech. It’s part of what led me to write the book Speak Freely, as part of an effort to sort of talk through those things.

And so, we’ve continued to kick around over ideas about what can we do to help advance better understandings of these things, help better implement free speech principles in practice… One of the ideas one of my colleagues at Princeton had thrown out a while ago, now, was the idea of some kind of insurance policy for faculty, so that they could avail themselves of legal protection and legal help if they found themselves in the midst of one of these controversies.

And nothing really came of it right away until we found ourselves with a donor who was willing to put up some money and could say, “Look, I’m happy to help improve the situation in higher education.” And then, we started thinking about some of these ideas that we might be able to put in practice. And that really started coming together in the spring of 2020, and then it was this sort of lengthy process to get the thing off the ground. And part of that was trying to think about the details of what exactly is this organization going to look like, and who ought to be members of it, and that kind of thing.

But this does reflect, I think, our long-term concerns about where we are in higher education, where we are in these speech conversations, more generally. It happens that we’re not in the midst of an even greater crisis than we seemed to be a year or so ago, but… it’s been a worry for a while now, about this situation. And it seemed quite evident we needed an organization like this, even a few years ago, let alone right now.

Nico: Yeah. A group of professors coming to each other’s defense when they are facing some of the free speech and academic freedom problems that we’ve seen across the country in recent years. Princeton being the ground zero. I mean, you talk about the adoption of the Chicago statement, and you talk about your book, Speak Freely, which I believe, correct me if I’m wrong, was assigned as a first year read or as a campus-wide read.

Keith: Yeah, that’s right. So, our president, when he began his presidency, had begun a program of giving incoming first year students a book to read over the summer that there was some programming connected to when they arrived on campus. One year, it was my book, Speak Freely, but he also distributed copies of that now into the incoming first year class, but to everyone else on campus, as well. President Eisgruber has been quite vocal on the importance of free speech and academic freedom to what universities do.

So, it’s been a very supportive environment, in that sense, at Princeton. We have good policies in place. I think we implement them fairly well. We do have senior leadership that have spoken out on these issues, and so… For, I think, a lot of us at Princeton, the concern is often less about what’s happened immediately on our own campus than what’s happening nationally, where lots of faculty find themselves at places where there’s a lot less support for free speech principles. The policies are not as well designed to protect free speech principles. University leaders are not as committed, and they’re more willing to cave under pressure when controversies erupt.

And so, those of us who are in relatively good positions to be able to speak out on these issues, I think, have a particular responsibility then to be speaking out on these issues and help defend those who are in much more vulnerable circumstances.

Nico: Yeah. Princeton’s an interesting school, because, as you know, Eisgruber has been vocal in defense of these values. And most recently, in his state of the university letter, in which he not only defends free speech and academic freedom, but defends the larger enterprise of truth searching, which we protect in a university environment because… Well, we protect free speech and academic freedom because it helps lead to truth.

And he also kind of echoes the Calvin report, which was issued by the University of Chicago many decades ago amidst the uproar over communism, and antiwar protests, and all that, in which he said… Which the Calvin report said, and Eisgruber echoed, universities shouldn’t take collective positions on hot button social issues of the day, because doing so would have the effect of inhibiting the full freedom of dissent, which needs to thrive on university campuses. The idea being that you create a kind of pall of orthodoxy on a campus by taking positions on hot button social issues.

So, his letter was fantastic, but at the same time, he kind of says, in some cases, however, my colleagues and I in the university and administration will need to speak out for what we call the basic tenants, including commitments to racial equity and inclusivity. What does that mean, exactly? I mean, for many people, it can mean debates over policing, a social policy issue. It can mean debates over affirmative action and Title IX.

So, he makes a very good general statement, but almost creates a carve-out for himself that you can drive a truck through, which creates some concerns for me. Especially when you look at last year’s Joshua Katz situation, in which Joshua Katz, a tenured professor at Princeton, wrote an op-ed for the Quillette, an Australian publication, amidst the Black Lives Matter protest and the anti-racism activism happening all over the country, which he criticized a now-defunct student group called Black Justice League at Princeton and called them a small local terrorist organization that made lives miserable for many who did not agree with its members.

Eisgruber responded to the university community, in that case, noting that Katz failed to responsibly exercise free speech, whatever that means. I don’t know that you can irresponsibly exercise your right within the scope of that right. That’s a debate for another place.

So, on the one hand, Princeton is great, but on the other hand, you have these – and they’re a red-light school, too, they have a bad acceptable use policy – but on the other hand, you have these small issues that seem to pop up where they want to have it both ways.

Keith: Yeah, no, I think that’s fair. President Eisgruber, I think, has been quite thoughtful about the circumstances under which a president should be able to issue statements. It has some real limits to it. He does think that, in general, university leaders ought to stay out of these disputes and let faculty speak out on their own behalf, but the institution itself should not be very involved. But he has some specific context in which he thinks a university president, on behalf of the institution, ought to be speaking out. Some, I think I’m more in agreement with than others.

So, for example, he does think that matters that affect university operations and university policy should be open for presidential comments. And so, things like affirmative action and Title IX, for example, are not just public policy disputes about which people disagree, but they’re also things that have immediate consequences for the university and how it operates. And as a consequence, the university has an official position, an institutional position, an institutional stake in those policy debates, and the president ought to speak out on them.

Some of these other areas, I think – and I’m actually quite sympathetic, I think, with that particular kind of category. Others, I think, are a little more difficult, and the one involving Joshua Katz is certainly one of them, I think, in which President Eisgruber thinks that there’s more space there for the president to speak out and criticize, in this case criticize faculty speech and things Professor Katz had said.

I am not terribly supportive of presidents doing that, although I think the threat is relatively small from that, but it is potentially problematic. I think President Eisgruber was somewhat careful in how he did it, but even so, there’s lots of instances of university presidents criticizing faculty in the midst of these disputes, where even if the president, which they aren’t always, but even if they’re reasonably careful to say that, of course, the faculty member here is legally protected in what he does and cannot be sanctioned, or disciplined, or fired for having engaged in this controversial speech… There’s lots of other faculty on that campus who are likely to get the signal that they probably shouldn’t speak out.

Not just because a university president might issue some kind of counterstatement, but if you were an untenured faculty member, you’re an adjunct faculty member, whose position depends on being rehired every semester to teach classes, for example, you would quite properly be pretty cautious about saying things that would earn you a presidential rebuke out of fear that saying those things would not only earn you a rebuke but also might lead to you not having your contract renewed.

And so, there’s a real chilling effect, I think, for people in the position of a president of a university, who have that kind of power over at least some of the faculty, being quite that vocal in criticizing faculty in speaking out, I guess, then. And as a consequence, I think, presidents of universities are much better off if they’re extremely cautious about what it is they say.

Nico: Yeah, I… I can only imagine the various demands and interests that a president of a university faces from all its various stakeholders. Faculty, students, legislators, parents, donors to the university… And you’re trying to please them all, right? But when you try and please everyone, you end up pleasing no one is the way it ends up working out. And when you kind of venture into critiquing or criticizing a faculty member, I feel like it opens the door and gives people who want you to criticize faculty who they disagree with an opening to make further demands, because they’ve seen it’s worked before.

Keith: I think that’s right, although I think that… I mean, one virtue of a place like Princeton, besides the policies and besides, I think, the general culture is generally good, university leadership on these things… One of the virtues of Princeton is it’s very well resourced. And so, as a consequence, it’s possible to ride out these kinds of immediate controversies. It’s possible that if donors say, “Look, I don’t like the fact that you’ve got this faculty member on your campus who’s saying these controversial things, I’m not going to give you any money this year,” that Princeton will be fine without those donations.

There’s lots of other universities where that’s much less true. They’re much more dependent upon ongoing gifts. They’re much more dependent on particular donors. In some cases, they’re highly dependent on politicians.
And so, university presidents, I think, are in a very difficult bind in those places, where a politician is breathing down their neck, and saying, “We don’t know what your funding’s going to look like next year, because of this controversial professor.” And the president’s trying to figure out how do you get the politician to back off while also, hopefully, they’re also thinking about how do you secure academic freedom. Ideally –

Nico: There’s a situation kind of like that in Idaho, right now –

Keith: Right.

Nico: – involving some sort of moral and ethics course that’s a requirement for graduation, and apparently, a student recorded a professor humiliating them for being white. And I say apparently, because no one’s actually seen the video, but… So, I don’t know what’s actually in it. I don’t know if it actually constituted something like a hostile environment harassment or discrimination. It very well could have, but they shut it down because of legislative pressure, and the legislature in Idaho had been looking to kind of end that course for a long time and they might have found their opening.

But just two points on this topic, before we move on more to AFA, is… One, I can only imagine what it’s like to be a professor who receives a presidential rebuke, especially at a prestigious and world-renowned university like Princeton. If I saw the president of my small organization, FIRE, doing that with employees, I would be horrified. And I’m sure my other employees would be very careful about what they say in the future, knowing that that’s a possibility. But I’ve also seen presidents do it to students. We’ve seen presidents do that to students and talk about – I’m not saying it is hostile, but talk about a hostile environment on campus for you.

So, I have to think it does create a profound chilling effect, and one that would really affect the environment for freedom of expression and open discourse on campus.

Keith: I do think it’s important for all of us on campuses to bear in mind the power relationships involved in some of these conversations. And so, university presidents have a lot of power, and so, I do think it’s a consequence of that, they have to be somewhat careful in what they say. And they’re not situated like a faculty member, where the point of being a faculty member is precisely you engage in arguments about various things. One thing that university presidents have to do is step away from that role and not engage in those arguments in the same fashion, because they no longer appear in the same way with their faculty colleagues.

Nico: Well, that’s what the Calvin report said, is we are the host of the critics, not the critics themselves.

Keith: No, that’s right. That’s absolutely right. But it’s also true, for example, as a faculty member writing about campus free speech issues, lately, for example, I’ve also been pretty cautious about what I say about students, which complicates talking about campus free speech. Because on one hand, the controversies involve students. Students are often the ones calling for faculty to be fired or shutting down speech –

Nico: Making illiberal demands.

Keith: They’re making lots of demands.

Nico: You can always defend their right to make those illiberal demands, but we will morally and ethically argue against them.

Keith: Right. And so, on the one hand – Right. So, you want to argue about the substance and you want to focus on the arguments themselves. On the other hand, what I also want to be somewhat careful not to do is single out the students themselves and throw a lot of ad hominem attacks out at individual students. In part because they’re students, and they’re learning, and they may, in fact, change their views over time, and I don’t think I want to assume that some student who writes an op-ed in a student newspaper is wedded to that position for the next 20 years. And so, I don’t necessarily want to single out that student in, for example, a book, about campus free speech issues.

But on the other hand, I’m also cautious or aware of the fact, at least, that as a professor, I’m encountering those students in a different way than if I was a peer of those students and criticizing them for their speech. And so, again, that has sometimes led me to want to engage in the substance of the arguments, but try as much as possible to separate it from the author of those arguments, so that, as much as possible, not attacking the individuals.

It’s a tricky thing to do, though, as to how do you balance those things where you can actually engage in the arguments that are important and are live issues on the campus, for example, or in the larger public arena, without necessarily coming down on top of some of the individuals who are sometimes in vulnerable positions and yet, nonetheless, making these arguments that ought to be identified and criticized.

Nico: There are… One of the things, tactically, I mean, if you’re jumping into the debate and criticizing a professor because you’re receiving demands to do so… I know when Joshua Katz wrote that in Quillette, there were students making demands. There had already been a petition on behalf of 350 faculty members at Princeton calling for a curtailment of academic freedom to a certain extent. But we have seen, tactically, professors who make a strong and unequivocal statement in defense of free speech and academic freedom, without saying anything about the content of the speech.

When they do that publicly, it takes the oxygen out of the debate or the call. So, for example, the best gold standard I’ve ever seen was in 2001, when University of Alaska president, Mark Hamilton, in response to demands to punish a poet on campus who had written a poem about sexual abuse in Native American communities, issued a one-page memo. He was a former lieutenant general in the Army, so he’s very… Saying, “Where free speech and constitutional values are concerned, there is nothing to investigate. There is nothing to look into.” Essentially, that was it. Because there were calls to investigate, to punish, and he said, “There’s nothing to investigate where the First Amendment’s concerned.”

And then –

Keith: I do think those kind of minimal, straightforward statements are the best ones. And really, they ought to be the model for what university presidents do.

Nico: That’s what you got at the University of the Arts, too, with Camille Paglia, a couple of years ago. Took the air right out of the room, out of the demands. The controversy ended, right there.

Keith: Right. No, I think that’s the best option, and I think… Sometimes, university presidents simply want to do more than that. Some of them are under a lot of pressure to do more than that. I think, sometimes, they’re just not thinking it through as well as they should, but I would certainly prefer that university presidents, essentially always, take that position.

And I’d be happy if they added to that, not only is this protected speech, and therefore there’s nothing to investigate, nothing to do about it, but in addition, even to emphasize that we expect to have controversial speech on college campuses. College campuses are, as the Calvin report emphasized, they are places that are homes to controversy, are homes to disputes, home to arguments, and this is, in fact, the brand.

And so, there is such an instinct on the part of the university presidents to say, “Well, you know, we’ve been selling students and parents on the idea this is a happy, fun place to spend your time.” And we don’t do nearly enough, I think, to advertise to them, “This is a place where we’re going to take ideas really seriously and we’re going to have serious arguments about ideas.” That sometimes you’re going to find it difficult, and you’re definitely going to encounter things that are going to be controversial in the midst of those, and that’s good. That’s what you would hope to get out of your college campus.

And I find it a little unfortunate that university presidents, I think, are very unwilling to make that positive case for what it is we’re doing on universities, and why we’re doing it.

Nico: Speaking of controversial ideas, is your fellow colleague Peter Singer a member of AFA? Because I had him on the podcast last year to talk about his journal of controversial ideas, and he seems very on board with everything that you’re saying, here.

Keith: He is. No, Singer’s very good about these issues. As you’d expect, he’s certainly… Well, I guess these days, you can’t expect it, necessarily, but the fact is, he had lots of controversial ideas himself. He’s not someone that’s unfamiliar with the kinds of calls for being punished and fired as a consequence of making arguments on behalf of controversial ideas.

And some people who do that are actually not very good on the free speech front. They want their own rights to speak out defended, but they actually don’t care very much about other people’s rights and sometimes they’re actively involved in trying to suppress other people. That’s not true of Singer. Singer is somebody who understands these are important principles.

Generally, in the universities, he’s willing to defend everybody in the speech rights that they engage in, and believes in universities as being places where we actually argue and debate about controversial ideas, not just that we develop orthodoxies about controversial ideas. And so, Singer, in lots of ways, is the very model of what you’d want a professor to be like.

Nico: This reminds me. It’s like it’s very easy to support these values in the abstract. I mean, you find that in polling. People support free speech. They support academic freedom. They support the right to peaceably assemble when you’re talking about the values in the abstract. But when the rubber hits the road, and you’re asking whether Neo-Nazis should be able to assemble in a town full of Holocaust survivors, the support precipitously drops.

So, are you confident that the members who are now members will stick with you once the rubber hits the road? That they’ll sign these statements, that they’ll hang around when, for example, a professor is under fire for using the N-word in a pedagogical sense in class, and there are a bunch of antiracism activists who are at their throats… I mean, will they stay around and will the union hold when the going gets tough?

Keith: Well, I certainly hope so. We have emphasized that to everybody joining, that, well, look, we’re defending people across the board. And we’ve really asked people to reflect on, one, what these civil libertarian positions actually entail, and two, how committed are they really to them. And there’s all kinds of reasons why you can imagine where you get off the bus on some of these controversies. You can imagine simply thinking that you do not want to spend your time and energy defending people who you deeply disagree with, even if you actually believe in the principles themselves. You may think, “I don’t want to be on the front lines dealing with these kinds of controversies.”

You might imagine, in fact, the more you think about it, that there are at least some boundaries that you’re not willing to cross, and that there are going to be some kinds of speech that is legally protected, within bounds for what universities can do. Nonetheless, you find so personally repellant that you’re not willing to come to their defense, for example, even if you perhaps don’t imagine yourself wanting to suppress them.

So, we have really encouraged people to think carefully about those things, and they have remained onboard. And so, I have a great deal of confidence, I think, in the people who have joined up. Some of them I have a lot of reason to be confident about it because a fair number of them are first amendment scholars, and law professors, and others who actually have spent a fair amount of time thinking about these issues, and understand the broader principles at stake.

I think others are further removed from these. This is not part of their day to day scholarly life. It’s not something they think about all that much, and so, we’ve tried to encourage them to think carefully about what it is they’re signing on to. And so, I have a fair amount of confidence, but we’ll see.

I do think it’s going to be terribly important… Partially, it’s very important in assembling the members of the alliance, we emphasize that we are non-ideological. We’re going to defend people from the left and the right. We’re going to defend people across the board. We’re not coming at this from a single direction. We’re not only interested in defending people from certain kinds of attacks or who have certain kinds of positions. And that was a message that had a lot of resonance. People were enthusiastic about that kind of project. They were happy to be joining a group that was as cross-ideological as we are. And so, they wanted to build a broad coalition.

And so, we’ve done a great job so far. I think people have come onboard committed to these principles. I do think there’s going to be a challenge when we actually encounter and start defending specific speech acts. Both in the sense that you could easily find yourself having to defend somebody who perhaps has not behaved in the most judicious fashion possible, perhaps they’ve really staked out a set of positions that people find particularly abhorrent, and yet we’re going to be asking people to defend people in those circumstances. And so, when the rubber hits the road, that can be difficult, sometimes.

And of course, we have promised that we will be defending people across the board, that this is not just conservative defending people on one side of the political aisle or the others, but it’s entirely possible we may get a slew of cases that all do lean one direction, politically speaking. And so, in any given moment, you may look at it and say, “Wow, look. The last five cases you took were all from the political left or all from the political right. What’s going on here?”

And so, it’s going to be –

Nico: Well, and that – Ira Glasser, who’s a big mentor for me, we were in the ACLU for many years, always tells me, “You guys don’t pick your clients. The censors or would-be censors pick your clients. So, you can’t help if, at that time, all of your clients are coming from the political right or the political left. It’s just what’s going on. And I would encourage you… I would just say, don’t be worried when you lose members, because you will lose members.” That’s probably baked into the business model, is that people, once they see how it actually goes, will jump off ship. But the people who remain will be a strong force for good on these campuses. I mean, you’ve got 200 already, which is a huge number.

Keith: It’s a large number.

Nico: Even if it’s just 10, it is helpful to the cause, you know, where we’re not getting any.

Keith: And moreover, it’s going to be more. And so, when we first started thinking about this, we thought maybe we can get a few dozen people who were willing to –

Nico: Which would still be huge!

Keith: Which would still be huge, and if they’re the right people, that would be terrific. And it turns out, in fact, there was such an enthusiastic response that we pretty quickly overshot our initial goal, and then we overshot the target we’d set after that. So, 200 people was far more than we were initially hoping to get or expecting to get or felt like we needed to get in order to get this thing off the ground. And so, we were extraordinarily happy, then, with how many people were interested.

What’s also striking is, we’ve been publicly launched, as of this recording, for a little over a week, now, and we’re just getting inundated with requests from people who want to join. And so…

Nico: But your membership is closed right now, right?

Keith: So, we are going to sort of grow in a managed way. Part of our commitment as an organization is we are absolutely committed to providing support to people who are members of the organization if they find themselves under threat and they have legally defensible claims. And so, we have to be a little bit cautious, then, that we can actually sustain that commitment with the resources we have available to us.

So, if we immediately opened our doors and had tens of thousands of members, and as a consequence, potentially had lots and lots of controversies we have to be weighing in on and defending, we might be pretty quickly overwhelmed.

We do proactively want to take on some controversies that do not involve members, because we’re trying to advance these principles more generally. There are lawsuits that we were purposefully choosing people, initially, to be founding members who were not that vulnerable, that they are distinguished faculty from impressive institutions, and in part, we wanted them because we thought their voices would carry some weight with the university presidents and the like.

But in the long run, in you’re going to be really effective, you’ve got to be able to protect people who are in much more vulnerable circumstances than that. And that will mean, for the time being, at least, reaching out to defend some people who are not necessarily members.

So, we’re going to manage our growth. We do expect to grow over time. We’re taking requests about membership, and then, we are selectively inviting some people in. But I do expect we will be growing over time, but we’ve also seen just a tremendous amount of interest, which is very heartening. But also, it suggests how big of a problem it is, out there.

Nico: Yeah, of course.

Keith: There’s a lot of people who are very nervous about their current situation. And so, they’re enthusiastic about having another group like this.

Nico: Yeah, yeah. Growing in a managed way is smart, too, because, especially where your legal services are involved, those cases can be very cheap to resolve or, depending whether you take it to court and there are appeals – I mean, you were talking tens, hundreds of thousands for cases that are… We had one case go seven years here at FIRE. Millions of dollars. It can be pretty tough.

When can we expect to hear about your first cases? We’re recording now, today’s the afternoon of March 18th. I don’t know when this will – This usually comes out every other Thursday, so it will probably be next Thursday. Will we have heard about a first case by that point? Or are you still working through?
Keith: You may not have heard yet about a first case. We are actively starting to think about cases. Certainly, we’re getting lots of requests from people who want to call our attention to cases. And my initial inclination is that there tend to be several circumstances where the first option should probably be to write privately to the university leaders to encourage them to do the right thing in these particular controversies and see how much progress we can make by trying to talk to people behind the scenes.

There are other circumstances where either that doesn’t work, and we need to be much more public about our concerns, or we ought to be public in the first place. And so, we may be doing things and actively involved in some controversies, and yet, it may not be as visible to the general public, yet, as it will be over time. But there may well be some public statements, at least, that can issue fairly soon, in part because some of these controversies are just already so public. All the relevant information is already public.

That’s certainly true of a lot of these controversies that emerge out of social media controversies, where somebody says something inflammatory on Twitter, people are calling for them to be fired… All the relevant information is right there, out in the open. The whole dispute is already very public. The goal, really, is to try to help, then, put some weight on the other side of the scale as the university presidents are thinking about what to do.

So, in those kinds of circumstances, you can imagine it going public very quickly. Other kinds of cases, they’re more fact intensive, more complicated to figure out what’s going on, maybe there’s more gained by proceeding a little more quietly at first.

Nico: Yeah. So, what’s your role in the organization? You were obviously involved in the early creation of it, but you seem to have become the leading spokesperson. I just got done reading an article you had published today in National Review Online. Are you the president? Or what’s the…?

Keith: So, technically, my title is the chair of the academic committee. So, the academic committee is the governing, decision making board for the organization. It’s a diverse group of faculty who are, fortunately, willing to spend some time on this and help us work through cases, and then make decisions about what kinds of statements we ought to issue, when should we spend money on legal defenses, and the like. And I’m chair of that committee.

We also have a legal advisory committee that is composed of mostly non-academic lawyers, who can help advise us on the legal issues involved, and whether or not there are credible legal claims to be defended here. We are very fortunate to attract a very distinguished group of lawyers to that body, and so I’m confident we’re going to get a lot of great advice, and they’re going to be very helpful in helping us think through what to do in some of these individual cases and with some of these particular controversies.

So, we encourage the members to speak out, generally, about these issues. We hope they do, but as much as possible, we’re sort of hoping to limit how many people are trying to speak on behalf of the institution. And so, we are trying to limit that to mostly me.

Nico: Are you going to have like a management staff, too? Like a full-time staff that handles…?

Keith: We do have some staff, and I am very thankful that we do. It’s very small but dedicated. But it’s obvious already that there’s just a tremendous amount of work for them to do. We may have to grow that staff over time. As I’ve gotten advice from people who’ve been involved in these kinds of organizations over time, they’re certainly convinced we’re going to need more staff support for what we’re doing, just to be able to manage the cases and investigate what’s going on. You know, handle the myriad things that come along with actually being an organization.

So, I’m very grateful that we have two people on staff, and they’re doing terrific work and have been for a while now, of getting to the point we’re at now.

Nico: So, where does the AAUP fit in with all this? The American Association of University Professors. Another union of professors that in part does academic freedom work, but have been less – might be less vocal in recent years as there’s just been an uptick and overload of cases.

Keith: Well, I do think that’s part of it, right? We are in a position now where there are just so many cases that every organization that’s working in this space is overwhelmed, and can’t possibly take them all on. And so –

Nico: Including FIRE.

Keith: Including FIRE.

Nico: Adam Steinbaugh, who is the director of our individual rights defense program, might have gotten on average three hours of sleep last summer. It was… Summer’s usually the quiet time.

Keith: Yeah, exactly.

Nico: Last summer was the busiest in our 22-year history.

Keith: Yeah. So, I think of this as being a complimentary organization to both FIRE and the AAUP. It’s like AAUP. It’s a faculty-led organization, unlike FIRE, which is a staff-driven organization. Like AAUP, we are focused on faculty speech rights. Unlike FIRE, which also is worried about student speech rights and works on that front.

In some ways, the legal claims that we’re concerned with defending are there to be defended because of the work the AAUP put in, especially in the early part of the 20th century. A tremendous number of American universities have incorporated into their governing charters principles of academic freedom that the AAUP had advocated for. And those, now, are contractual rights that faculty can take advantage of, and we want them to take advantage of it.

I think the AAUP’s traditional model of how they operate has been somewhat slow and deliberate. They’re often coming in after the fact and deciding whether or not to their traditional tool for sanctioning and discouraging universities from engaging bad behavior is to censure institutions for things that they have done in the past. I think our view is you need to be a little bit more nimble than that and move faster to try and get involved in the controversies while they’re still occurring, in order to put more weight on those things.

It’s also true AAUP, at this point, does have a very diverse mission. They also focus on a lot of other things that concern faculty. On many campuses, they serve as a collective bargaining unit and a labor union for faculty.

So, academic freedom now is part of their mission, but it’s not the exclusive or even the dominant part of their mission. And so, I think there’s room for an organization that is also faculty-driven, shares basically the same principles of academic freedom the AAUP was founded on, but is a much more narrowly focused on this specific mission and does not get entangled in a variety of other conflicts that are also important and concern faculty, but I think we want to be very focused on what we’re doing.

Nico: Are you all a nonprofit tax-exempt organization? Where do people go if they want to support you all and they’re not faculty?

Keith: So, we are a nonprofit. Our tax status is pending, but we are in the probationary stage, I guess, and well on our way to having that finalized. So, we do expect the donations to be tax-deductible. We have a website up and running for Academic Freedom Alliance, and there’s a donation button right there immediately on the page. And we are certainly actively seeking donations. This is going to be an expensive enterprise if we’re going to be effective. As you say, it costs money, and it’s not always clear to us how much money it’s going to cost to provide legal support to individuals in these situations.

The more funds and resources we have available to us, the more we’ll be able to do, and the better job we’ll be able to do in actually advancing the protection of free speech on campuses. And so, we’re actively in the business of trying to raise more funds so we can embark on that mission and pursue it more aggressively.

Nico: You all have the website URL of academicfreedom.org, which it just astounds me that that URL was available. It’s perfect. So, I’d encourage people to go check it out. The website looks great, as well, too.

By way of closing, here, Professor Whittington… I just want to get your general perspective. You’ve been teaching for a long time. How has this dynamic on campus changed? Do you think the situation for professors has deteriorated over the course of your career? Or has it remained relatively stable with upticks of problems every so often? And just your engagement with the students, I mean… Are the students becoming more involved in these sort of campaigns to censure professors in a way they weren’t previously?

Keith: Yeah, I don’t think there was ever a golden age in which there were no threats to academic freedom and everything was going swimmingly.

Nico: Not even one day in 1970?
Keith: There might have been a day.

Nico: That’s what Greg likes to say. Yeah.

Keith: Yeah. I think there are better and worse periods, right? And so, these are constant threats. There’s constant temptations to want to suppress people from the other side, people you disagree with… As you note, if you look at survey literature on these things, Americans have always said they’re very supportive of free speech as a general principle, but if you start asking them concrete cases, they pretty quickly start qualifying and backing off of those things.

And so, I don’t think we should ever be complacent or imagine that these are not going to be problems, but having said that, I do think that, when I was starting my academic career in the mid- ‘90s, it was a better situation, all things considered, than it is now. I mostly took academic freedom issues for granted, partially as a function of the kinds of institutions I was at. It was easier to do than it might have been even then at some other places.

I think we’re now in an environment that is broadly much more hostile to free speech and academic freedom than it was even 10 years ago. Faculty at a much wider swath of universities, and across a much wider array of disciplines, are concerned about these issues and worry about these issues now, compared to what was true 10 or 15 years ago.

So, for example, it was once the case where I think the colleagues in the sciences would sort of look on the other side of campus and say, “You’d be bothered with a lot of problems over in the humanities and social sciences. Thank goodness, we don’t have any of those problems over here. Back to the lab.” And that’s just not true anymore. I think, instead, now we look around and say, “Wait, this stuff is now an issue for us, too.” It’s affecting what’s happening in professional schools like law schools and medical schools. It’s affecting parts of campus that it didn’t affect before.

So, I think there is a lot of concern. And moreover, the sources of threats to academic freedom are quite expansive these days. And so, I do think it’s true that students are frequently calling for faculty to be fired in ways that was not so true 10 or 15 years ago, but at the same time that you’re getting that kind of rising student pressure on faculty speech, you’re also getting various outside activist groups that are constantly monitoring what’s happening on campuses, and sometimes calling for faculty to be fired.
Nico: Yeah. There wasn’t social media in the ‘90s, so there wasn’t that sort of organizing vehicle for those sorts of calls.

Keith: Yeah. I think it’s both the internet makes it easier to mobilize that kind of opposition to free speech, and it also makes faculty speech much more visible than it was before. Right? That there’s one thing about social media, is the world is now getting some impression of what the unfiltered views of faculty are, and they don’t always like it. And there’s a risk of people being that visible on social media and it generates a lot of these kinds of controversies as a consequence.

And so, in some ways, you can look across the last hundred years, and pick out, “Oh, sometimes politicians are a problem. Sometimes donors are a problem. Sometimes students are a problem for the state of free speech on campus and academic freedom.” We’re now in an environment where they’re all a problem. And so, there’s just a lot of forces arrayed against academic freedom, and so, I think it’s all hands on deck, then, in trying to protect us and hopefully secure these kinds of protections for the next generation of faculty.

Nico: Yeah. There was, when I first started as a full-time staffer at FIRE in 2012, we thought we were busy then, and I kind of look back at those times… like the Shire, from The Lord of the Rings. You’ve got beautiful green grass, and there’s birds chirping, and music playing, and fires in the hearth… Now, I feel like we’ve been amidst Mordor since 2014, and it’s just constantly a struggle.

Keith: No, there’s a lot of truth in that. I mean, if you had asked me 10 years ago if I’d be even joining an organization like this, let alone leading an organization like this, or if I’d be writing all the time about free speech issues, I mean, I would just say, I teach constitutional law. I write about constitutional law, as well as other things, but I mostly focused professionally on separation of powers concerns, and federalism concerns, and other structural features of the Constitution. I didn’t spend a lot of time writing about rights issues, including free speech issues, even though I was teaching it.

Now, it’s on my agenda. Now, it’s taking up my time and energy, but it’s also more on my scholarly agenda. It’s more of what I’m researching and writing about, precisely because it has risen in importance and really demands attention in a way that I wasn’t expecting.

Nico: Well, Professor Whittington, I think we’ll have to leave it there. It’s great to have the Academic Freedom Alliance joining us in the cause. It’s great to have you on FIRE’s board of directors. You’re my boss, technically. So, please give me a good review on this one.

Keith: So, I shouldn’t criticize you.

Nico: Yeah, yeah. If you can criticize, just email me. Don’t email my direct reports, but… Very excited to have you aboard, and thanks for coming on the show.

Keith: I really appreciate it. Thank you.

Nico: That was Princeton’s Professor Keith Whittington. He is a founding member of the Academic Freedom Alliance, which you can learn more about and donate to at the best URL out there, academicfreedom.org. What a great URL. So jealous of that.

This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. To learn more about So to Speak, you can follow us on Twitter, at twitter.com/freespeechtalk, or like us on Facebook at Facebook.com/sotospeakpodcast. You can also email us feedback at sotospeak@thefire.org, and we also take call-in questions, which you can leave a voicemail for at 215-315-0100. If you enjoyed this episode, consider leaving us a review at Apple Podcast, Google Podcast, or wherever you get your podcasts. They do help us attract new listeners to the show. And until next time, I thank you all again for listening.