So To Speak Podcast Transcript: University of Wisconsin Professor Donald Downs

April 6, 2021

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

Nico Perrino: 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 Perino. And today we’re talking with free speech hero and longtime FIRE friend, Donald Downs. He is the Alexander Michael John professor of Political Science emeritus and affiliate professor of Law and Journalism emeritus at the University of Wisconsin Madison.

And since retiring Professor Downs has been the lead faculty advisor to the free speech and open inquiry project at the Institute for Humane Studies in Washington, DC, and is the author of the book released last year, Free Speech And Liberal Education: A Plea For Intellectual Diversity And Tolerance. Professor Downs, welcome onto the show. It’s good to finally have you.

Donald Downs: Glad to be here, Nico. Good to see you.

Nico: So, the first time I ever heard you speak, and I believe that I ever met you was many moons ago. It might’ve been when I was a FIRE intern in 2011 or 2010, when you gave a speech at Bryn Mawr during the –

[Crosstalk]

Nico: – Student FIRE network.

Donald: That was a fun weekend.

Nico: You had a bullet point list of principles that you were going through and I always remember. Yeah, and you were still a faculty member, you hadn’t retired by then?

Donald: No, I still had about five years to go.

Nico: So, I wanna introduce our listeners to you and your background, which I find to be unique. So, correct me if I’m wrong. The first book you ever wrote was Nazis In Skokie Freedom Community And The First Amendment. And you didn’t take the expected approach in that book that you might come to expect from someone of your stature in the free speech community. What was your path to that book? And, what was the argument? It might surprise someone today.

Donald: Well, Skokie, I was in grad school at Berkeley and I had to write a dissertation, had to major in three fields in the policy department there. And I had done American politics and political philosophy or theory, and I had to pick a third field. I didn’t know what to pick. And so, I did one night of public administration in a seminar and came out of that and said, “Well, we need public administration, but that’s not for me.” So, I had to find a third field and I looked at the reading list for public law they called it, public and constitutional law, it’s a separate field now has been merged into American politics usually. But, was a separate field at that time. And I liked the list, interesting stuff. And it was a way combining political theory and practical law.

It sort of come together. And I know that, Holmes, who’s one of my first name in heroes. Of course, I talk about them a lot in the new book. Said that he became a lawyer or studied law because it was a way of practically applying philosophical thoughts in the real world. And so, that appealed to me and at the time. So, then I did the field, took the exams and then I had to do this thing they call it a PhD dissertation. And at the time the Skokie case was going on outside of Chicago.

Nico: So, this is 1977, 78,

Donald: 77, 78. And, it took a long time to get it done and get it published. But, that had just started and I was still in the midst of the other prelims. So, I finally came to the point to do the dissertation. The Skokie case had been resolved, but it was still making headlines and probably in First Amendment law and lore, maybe the most prominent nine Supreme Court free speech case ever.

And so, it intrigued me and as an undergraduate, I studied with a well-known professor at Cornell, Walter Burns, who was a more conservative straussian political thinker who was also good at constitutional law. And Burns took aside, there was more, “We need some restrictions on non-virtuous speech.” He was in that mode back then. He changed his mind later, once he experienced speech codes and things like that.

But anyway, so I was intrigued with that. So, I started looking to Skokie and, I was working with a professor, Bob Kagan at Berkeley, who was also very empirically oriented. So, he said, “You can’t just write a dissertation about this issue. You’ve gotta go and talk to the people. You’ve gotta do a case study, and then you generate broader thoughts out of it.” And so, I went to Skokie and it was really one of the great experiences of my life. A lot of my books, I’ve done a lot of interviews, gone into places, to talk to people. And so, I interviewed the survivors, six of them – And my wife’s talking to me on the corner.

Nico: Oh, it’s all right

Donald: She says I’m being too loud, which I tend to do when I do these things. And so, I did all the research and interviewed everybody. And I was really overwhelmed just by the impact that the Nazis coming to the Skokie would have on the survivors.

Nico: Yeah, there was something like 6,000 Holocaust survivors there. And that’s just –

Donald: Well, they weren’t sure. Somewhere in that neighborhood, Skokie had 70,000 residents at that time, 30,000 Jews. And actually it was more about between 800 and 1200 survivors, but it was the third most prominent area for survivors in the country, outside of New York City and Los Angeles. And they had all come there, because they talked to each other, “This is a safe Haven.” And so, they had come into Skokie to escape the nightmares of the past. And then, 30 years later, here comes this little punk Nazi party. And they really were from an objective standpoint, this not the nightmare reborn, but in their minds, it was. And understandably so.

Nico: Yeah, I actually just finished up a documentary about Ira Glasser who took over at the HCLU in the wake of Skokie. Ira and I, who of course was the leader of the national ACLU during the majority of that case. But Ira was the head of the New York Civil Liberties Union, and a large number of Jewish constituents for that civil liberties union. And so, he spent a lot of time defending the case. And as part of the story, we tell about Ira’s life in this documentary; Mighty Ira. We revisit the Skokie case.

Donald: And it’s an interesting story. You’re well educated on the issue. That’s great. When FIRE did its 50th anniversary dinner in New York, five years ago, I was introduced to him and we ended up speaking together for about 10 minutes. And he told me that he thought that Skokie would make or break the ACLU at that time because, ACLU took the side of the Nazis, right, to demonstrate. And the lawyer who defended the Nazis in the Chicago area, because it’s Skokie is right outside of Chicago.

Nico: Yeah, David Goldberger.

Donald: David Goldberger, a Jew. And the survivors I interviewed to a person said that they were angry. They were angrier at Goldberger than they were at the Nazis because they considered him a traitor and it was very tough for him.

Nico: It was this experience interviewing the survivors that led you to take the position in your book, which if I’m summarizing it from the summary of the book, it’s that, content neutrality presents an argument for the minimal abridgment of free speech when that speech is intentionally harmful. You think that there should be a tweak on that content neutrality.

Donald: I mean, it was a strange argument. I mean I got a lot of notice. I got a lot of, reviews and interviews and got some awards from it. And so, it made a splash, but it was a strange book in certain ways. Because on one hand, I started coining language that I’m not saying it was directly picked up because I wrote it, but it was consistent with the later language that critical legal studies people would use. I talked about assaultive speech and things like that. And of course in that context, it was. It was like a threat for a lot of these people, even though it didn’t conform to the technical legal standard of a threat because it was in the public forum.

So, in that sense, I was doing something consistent with what would become a wave of censorship in the future. But also because of my background, I tried to make it as to draw the distinction as carefully as I could. So, I didn’t say we should outlaw group libel, which goes back to the Bullhorn case in 1948. I think it was around that time the Supreme Court said that speech that had generally disparages groups based on religion and race, et cetera, maybe a bridge.

Nico: An antiquated doctrine though not dead.

Donald: That’s an interesting way of putting it because that’s correct. Supreme Courts never overruled it. It played a big role in the Skokie litigation, but the lower federal courts both the Federal District Court and the Appeals Court basically said other areas of First Amendment doctrine as they’ve evolved and now painted Bullhorn into a corner. So, we refuse to apply it, even though the Supreme Court’s never overturned it. So, I was really taken with the survivors. And, at that time, the other side of the coin here –

Nico: Did you interview Goldberger?

Donald: Yes, I did. And I think he was not happy about the book. He thought I treated him unfairly. And if I did I regret that because I consider him a hero now.

Nico: Have you spoken with him since?

Donald: I don’t think so – no, yes I did. I gave a talk at Ohio State Law School on a totally different issue in 1993. It was brought in by Kagan who was there on a one year thing. And, we met and talked and I told him I changed my mind. And he was gracious and he’s a good guy, but I can still feel he was a little bit bitter about it and perhaps understandably so, because he took a lot of flak for it.

Nico: But despite it, he took most of the interviews that were asked of him. I mean, he went on the Phil Donahue Show where Donahue packed the audience with survivors and he handled himself – I can only imagine. I mean, his parents go to synagogue and they’re vilified because he’s their son. I, you know –

Donald: It was awful. He was denounced by his rabbi with him out there in the congregation. And –

Nico: He moved when Frank Collin did his first rally in Chicago, right in the Plaza, the federal Plaza there before going to Marquette Park. He got his family out of town because he was worried there would be violence.

Donald: Wow, I guess his family –

Nico: Yeah.

Donald: Because had they had the real demonstration, it might’ve changed First Amendment doctrine. I always used to tell my students when I taught the First Amendment, there are some very important doctrine like the doctrine against prior restraint, the New York Times case in the Pentagon Papers case. So, the Pentagon Papers case, what would have happened had that information actually led to a national security debacle? Now the court may have had to reconsider its doctrine, but fortunately it didn’t, and it’s the same thing with this, Nazi have the right to demonstrate, but what if there was a mass violence that took place because of it? Usually we’ve had these eruptions in very limited locations but then are not repeated.

Nico: Well, you saw that with Charlottesville, right?

Donald: Absolutely.

Nico: I mean, someone did end up dying, but you didn’t see in Charlottesville, which you did see if you reviewed the archival footage from especially the Marquette Park rally, there just wasn’t a police presence in Charlottesville. And if you look at what happened in Marquette Park in 1978, there was a division of police officers there.

Donald: But that tells you a lot. I talk about this in the new book, the need for the authorities to maintain order Liberty has to be ordered liberty.

Nico: So, clamped down on political violence or the prospect of it.

Donald: Right. You’ve got to arrest people that are going to your arrest, speakers that insight under the legal standard. And you should deal with and even possibly arrest bystanders who threaten to do trouble because of the speakers. That’s the heckler’s veto.

Nico: Yeah of course.

Donald: So, you need the power of the state to protect the liberty. And also the kind of current rights of the listeners to hear what the speaker has to say. In Charlottesville they stood down as a term of art that was being used back then with predictable results.

Nico: Yeah. So, yeah, you tip your hat to this. As I mentioned earlier, your Nazis In Skokie book challenges, the doctrine of content neutrality, but you said you changed your mind on that. What led to that and how soon after the book came out, did you change your mind?

Donald: It was awhile. It was awhile. Several things happened and I talk about it in the new book a bit, the book isn’t about me. So, I don’t talk about it a lot.

Nico: Yeah. And just a reminder for our listeners, the book is Free Speech And Liberal Education. It came out last year and we’re gonna get to that in a bit.

Donald: Right Cato Institute. And, well, first of all, I did another – my next book, which was my tenure book at Madison. I was at Notre Dame and I wrote that the Nazi book, the Skokie book. And then, I came to Madison different kind of a context, different environment, different background. And I did a book on the new feminist approach to pornography, Catharine MacKinnon in that group. And I realized what they were doing was really an attack, not just on a particular form of pornography, changing traditional obscenity doctrine, which was more based on morals. This is more based on politically quality agendas, which are good. I was all for politically equality, but they wanted to get that way by restricting speech and distinguishing egalitarian from non-gelateria and pornography.

And that was very viewpoint based. And I considered it along with the courts to be pretty much an assault or attempt to radically change First Amendment doctrine, which even in a Skokie book, I basically accepted. And I considered that this is where this kind of thinking is going. And it was my first wakeup call about new arguments for censorship. And interestingly, the ordinance that MacKinnon and Andrea Dworkin pushed, and it was adopted by a few communities around the country, including the arch conservative town of Indianapolis.

Nico: Yeah, I was gonna say I went to Indiana University. So, I remember that.

Donald: Wow, so did my daughter.

Nico: Oh, did she?

Donald: Yeah. And Strange Bedfellows; the name of one of my chapters in that book. But the ordinance was premised on four major prongs. They called it, of legal attack. And one was basically said the mere presence of pornography in itself constitutes discrimination against women as they define pornography. And that boiled down to the proposition that expression or speech here is the same thing as action because its mere presence formed was a matter of discrimination, no matter where it was found.

Nico: And, no matter who was engaged, I mean, it could be a pornography company owned by a woman. It could be women only, yeah it didn’t matter.

Donald: It didn’t matter. Only the content mattered. And so, Harassment Law would say some of the cases in the courts that pornography on the walls in a workplace constitute sexual harassment, which is a form of discrimination and properly so but that’s a very specific context akin to fighting words, right. Is there it’s omnipresence, it’s in a narrow context. But the ordinance was, you can find pornography at some little gas station in the middle of the desert, like that last scene in Terminator two or something, and that’s the discrimination going on there. So, I started seeing where the approach I took in the Skokie book was headed. And that was the first foreshadowing of that.

And then, the second thing was, my teaching at Wisconsin, I started getting a lot of students. I really started seeing the importance of academic freedom. Speech codes started being talked about. That was when I had my turning point when Wisconsin adopted a student in faculty speech code. I was more into the profession by then. So, I was more appreciative of the link between strong intellectual freedom and the pedagogical mission that I was becoming so attached to.

Nico: But you could be an advocate for that within the educational context and still hold the position that you held in Skokie. And just that the academic environment is a unique environment, but you went you went broader than that.

Donald: I went broader that. And the reason was just because I was – maybe because of the way I did my profession, that Wisconsin was essence a unique kind of context, because most higher education we evaluate professors on research teaching and citizenship. Okay. I forget the third preference called. I’ve been retired too long.

Nico: Well, now a lot of the colleges and universities are adding diversity and inclusion as something that they need to demonstrate.

Donald: And that’s an Ideology which you can agree or disagree with it, but that’s a little bit different. What are the third prong is? It’s not citizenship. I have to think of it. Everyone who’s going to listen to this is going to say, “My God, he can’t remember what that is –”

Nico: I don’t think anyone’s going to fault you for that.

Donald: It’s all part of higher education, but Wisconsin does. We have this thing called the Wisconsin idea. It goes way back to the [inaudible] [00:18:52] era where the university is there to also serve the state. And we have Wisconsin public radio here. It’s the third biggest public radio network in the country. We have a lot of outreach to the world.

And so, I think that was where the line between the ivory tower and the world behind it or outside of it. I think it’s important to make that distinction, right. We want to be an ivory tower to some extent, but also I think it’s important for at least a lot of us to have an impact on society. And so, to me, that line between what happens in Skokie and what happens in the university was not as tight as it had been before.

Nico: So, you mentioned your interest in speech codes and your experience on campus as a professor, wasn’t Wisconsin, if I’m recalling correctly at the subject of a speech code lawsuit in like the early 90s?

Donald: Yes. And I should have mentioned briefly, I was a faculty Senate member when they pass those speech codes and I voted for them. Because that was right before the tipping point. Okay. And then, later I became a leader of a movement to abolish the faculty speech code. So, I did a 180 on that, but there were two –

Nico: Well, I should say, the broader free speech context, there were a lot of current, very active free speech advocates who had the opposite position in Skokie and evolved. I mean, George Will is another famous example of that.

Donald: Right, right.

Nico: So, it’s not unusual. It’s actually a testament to one’s ability to reevaluate positions to change one’s mind. If you don’t ever change your mind, how do your mind is working?

Donald: Well, I think that’s true. You can see there are different ways to change your mind, right. Different reasons. I used to tell my students, “Your compromises is good if it’s made in the name of principle. But if you’re just compromising because you just want to get along or because you’re, [inaudible] [00:20:53] open mindlessness rather than open-mindedness. You want to distinguish between the two.” And it took me, I evolved, this was an evolution. And like I said, a lot of it was just due to my own intellectual scholarly and pedagogical development.

So, I started realizing what was at stake. Also, students pushed me. I had a great group of students that were free speech activists on campus. It was a diverse group in terms of gender and race. And they kept saying, “Downs, you’re supportive speech codes contradicts everything you’re teaching us. It’s not you.” And eventually I realized that I had painted myself into a corner because it’s a metaphor I’m using right now when it came to speech codes, because here I was upholding speech codes over here, but everything else I was doing was based on having a wide open, free speech environment.

Nico: Well, the late 80s was a time when a lot of colleges and universities were passing speech code. I mean the famous Doe v. Michigan case would later be struck down. But then the speech code at the university Wisconsin that you voted for was also struck down right?

Donald: That was a student code that was struck down.

Nico: Gotcha.

Donald: And that was out of the UW Milwaukee’s a student paper; they brought a lawsuit Brady Williamson who’s a big democratic activist in town. You might remember when Trump debated Clinton, there was a guy in the background who kept picking up her folder and moving it after the debate. And he was on social media and everything. “Who is this guy?” He’s Brady Williamson.

Who’s a leading First Amendment, lawyer attorney in Wisconsin. And he took that case on behalf of the UWM post in Milwaukee. And they want it based on – because it hadn’t been restricted to fighting words. There’s a broader hate speech kind of thing. And so, he won it. The faculty code, however, stayed on the books and the faculty code was much broader and did not make the same exceptions the student code made, but it was also of arguable constitutional status, meaning that because we’re employees of the institution and we’re doing our jobs inside the classroom, a case could be made.

And I have a separate chapter of my new book on academic freedom versus regular free speech, which speaks to this argument could at least be made potentially that the faculty speech code at least was arguably constitutional, but in terms of policy and pedagogy bad.

Nico: Yeah. So, just as a point of clarification, the speech code you’d voted in favor of was the faculty one or –

[Crosstalk]

Donald: They were both presented at the same time.
Nico: So, the faculty Senate would vote on both of them. Got you.

Donald: Both of them, the student code got almost all the debate once that came through and it was a fairly close vote actually. The faculty code just got voted in easily. It was an afterthought because we were told this is anti-harassment. It’s a professional environment. You have to do what the university tells you. Okay. And so, the student code got struck down. It was that time that I changed my mind. Ninety-one to 92, they set up a committee and Donna Shalala was the chancellor. She was one of the leaders in the speech code movement in the country, a pioneer. And we put together a group. I spoke to it briefly though. I was not on the committee to come up with a revised speech code for the students.

Nico: After the court case.

Donald: Yes.

Nico: I’m assuming.

Donald: And then, we had a faculty Senate meeting and it was in preparation of that, that I changed my mind. This is in the spring of 92, turning point in my life because life was never the same afterwards. And, what they did was they limited the exception to fighting words, but they did not say that was only certain kinds of fighting words, like race, gender, sexual orientation, religion, ethnicity, those kinds of fighting words were prohibited, not others. And I was asked to go on to Wisconsin public radio and talk about the code. And they thought I was going to defend it.

Nico: Because you had voted for it before?

Donald: Yes. And the night before I had a reckoning and it was due, I had talked to my students, I had them a seminar. I called them my primal horde, because they were just so interesting. And I thought about it hard and it published the book on pornography. And I suddenly realized, “Okay, I’m not for this thing.” So, I go on public radio and I give a talk. Usually it’s an hour show, 15, 20 minutes. I’m talking to the MC and then they’d have callers. And I presented my case against the code.

And then, very quickly after that, they took a commercial break. Then we come back, there’s a call from a guy in McFarland, which is nearby to Madison. A professor in the art school here. And his name is Richard Long. And he called me and he said, he called in and he says, “I wanna thank you your arguments against the code are right on. But let me tell you, there’s another code you’re not talking about.” Then I said, “What code?” He says, “Oh, there’s a faculty speech code.”

Then I said, “What are you talking about?” We had all forgotten about this faculty code. In the meantime, several cases had come up under [inaudible] [00:27:01] that no one even knew about, because it was just all done in administrative secrecy. And he had real trouble with it. That had been misapplied in his case, in a horrendous way, which I talked about in my 2005 book at length.

Nico: What’s the name of the 2005 book?

Donald: It’s called, Restoring Free Speech Liberty On Campus.

Nico: Yeah. So, you’ve written a lot of books about free speech, and the campus environment. We’re in the mid-90s or early to mid – first before I forget, your book on pornography, must’ve came out around the same time that [inaudible] book defending pornography came out, right?

Donald: Yeah, hers was 93. Mine was 89.

Nico: So, you were ahead of the curve on that.

Donald: Yeah, yeah. And I tell you who’s the other way is ahead of the curve. And I don’t want to toot the horn here, but –

Nico: Go ahead, do it.

Donald: We had a faculty Senate meeting about the student code and I spoke against it. And I said, the following, I said, “If you’re gonna have a restriction to fighting words which is constitutionally permissible, if they’re defined correctly, you must prohibit all fighting words. You can’t just prohibit those dealing with race and gender and religion because that’s viewpoint discrimination. And then, a few months later, RAV v. St. Paul came out and the same argument was made by the Supreme Court.

Nico: The fighting words doctrine is an interesting doctrine. And one that I don’t know if I personally am entirely on board with just because I don’t love restrictions on speech that are subject to an audience reaction. I know you have the reasonable person standard, but it’s the reasonable person standard is necessarily a difficult standard.
I want the agency, at least for the speech, if we’re going to preclude it or accept it from the First Amendment to be on the speaker and not any subjective reaction from the listener. So, I mean, what generally is your thinking about the fighting words doctrine because we think about the fighting words doctrine, it goes back to a case that –

Donald: Horrible case.

Nico: Yeah, horrible case involves speech that you wouldn’t think of as fighting words today.

Donald: Now, it’s classical protective speech, right?

Nico: Yeah. I mean Jehovah’s Witness called a police officer what? A goddamn racketeer.

Donald: Yeah, and fascist.

Nico: And fascist.

Donald: Right, right.

Nico: If we’re jailing people because we call them fascist. I mean, 40% of the country would be in jail right now.

Donald: Especially these days.

Nico: Yeah, right?

Donald: It’s a problematic doctrine. Same reason the Supreme Court has restricted it so much. For example, I would give my students to go back to the Westboro Church case. And we’ve had interesting experiences with Westboro Church here in Wisconsin. I actually was a consultant to some students who did a counter protest to the Westboro Church on campus. They wanted to shut them down. And I said, “No counter protest.” And so, we did. But you have a military funeral and there they’re saying, “Soldier dies because America is evil. They deserve to die.” It’s a horrible stuff.

But what if you went up to the family of the deceased soldier, and started making these kinds of comments directly to that family’s face, and someone got mad and started getting violent. If you’re gonna have a fighting words exception that would be the kind of case that it would be intended for.
Now, maybe you shouldn’t have an exception because you don’t want the bad cases to make a rule that are going to affect other cases. There are cases, at least in principle, I think that a line could be drawn where the speech is so provocative and so personal. And it has to be very personal after Cohen versus California, personal directed insults. I can probably live with that. Plus there are very few cases it’s hardly ever applied. And the Supreme Court has painted into a corner pretty much like it has [inaudible] [00:31:09] maybe not quite as tightly.

Nico: What is your thought? I know we’re veering off into free speech philosophy at this point, but there are calls for expanding as Trump said, the libel laws. And you see Clarence Thomas on the Supreme Court question the New York Times V Sullivan case. Famously Nat Hentoff debated another scholar in the early 90s, or maybe late 80s, just saying we should do away with the defamation doctrine in general, which is a very Nat Hentoff argument.

But it’s one that I have sympathy for just because I find that it’s more often than not used to silence speech. And you have the anti SLAPP statutes that help prevent some of this, but what’s your sense of defamation, the defamation doctorate at large?

Donald: Well, are you talking about public officials or just in general?

[Crosstalk]

Nico: It’s more difficult with the private person of course than it is with the public officials. The actual malice standard, I think is a good standard if you’re gonna have the doctrine, but it’s of course, very difficult to prove and rightfully so. But, yeah, I just always wonder, and I’m just always compelled by Nat Hentoff’s general argument.

Donald: Yeah. I’d be the best argument against it. I’m not against it per se, but I think it can be easily abused. And who’s the New York Times writer famous writer, he wrote the famous book on the case involving the right to a lawyer if you’re indigent criminal defendant. Gideon’s Trumpet, Anthony Lewis.

Nico: Yeah. And he wrote a free speech book too.

Donald: Right.

Nico: What the name of that book?
Donald: I forget the name of it, but I read it and his argument is that Sullivan, even though it is highly protective of speech about public officials and public figures, it can still bankrupt a paper just because of the lawsuit.

Nico: And that’s what the anti SLAPP statutes, the strategic lawsuits against public participation statutes are meant to prevent.

Donald: And they need to be vigorously enforced.

Nico: But they don’t exist in every state so –

Donald: They can’t.

Nico: – Yeah.

Donald: Supreme Court, maybe if they wanted to, they could expand that and call that kind of remedy those constitutionally requirements. That gets it into policy questions that are difficult for a court. But –

Nico: ‘Cause we’re talking to these anti SLAPP statutes aren’t just statues. I mean, they’re not court and posed obviously.

Donald: Right, right. But I think they’re important. So, I think in principle, if you intentionally lie about somebody and that does harm that person’s reputation in a meaningful way that is a real harm. That is a discrete enough harm that the law can recognize. But by the same token law firms can abuse these torts in order to intimidate people and to bankrupt them. So, SLAPP statutes, I think are really necessary as antidotes.

Nico: But isn’t the argument that the free speech activists usually make is that, to correct an error you should engage in the marketplace of ideas and fight bad speech with more speeches. There’s something peculiar or narrow about defamatory speech that creates a market malfunction that doesn’t allow more speech to correct it. And that therefore would allow for this tort to –

Donald: Yeah, I haven’t thought about that enough. That’s a really good point though.

Nico: I know I’m just thinking aloud here.

Donald: Yeah.

Nico: I’m not asking for answers.

Donald: Yeah. I mean, the harm that can be done I think is already so substantial and you’re asking the person to dig out of that hole and that can actually even compound the problem. So, I’m not sure I can agree with that, but I haven’t given that point a whole lot of thought of it.

Nico: I’m gonna try and remember to put in the show notes, the Nat Hentoff debate from the late 80s or early –I think it was organized by Cato. It’s a really good –

Donald: Oh, it’ a great [inaudible] [00:35:20].

Nico: Yeah. So, I want to get back to your time at the University of Wisconsin. There was another big – I think it was a Supreme Court case at the University of Wisconsin that shapes the student –

Donald: Oh, yeah. I saw it.

Nico: – that was at the – what’s the name of the kid?

Donald: Southworth [Inaudible].

Nico: Yeah. And that’s the student fees and funding case, right?

Donald: Yeah, yeah.

Nico: What year was that? Do you remember? That was before your time.

Donald: It came out in 2000. I had been here eight, 15. I was involved in that case. I had students on both sides of it. So, I had a lot of students that were in student government that were student government activists, partly. So, they could be in a situation to raise money for student groups. So, they were on the pro student funding side. And then, I had students that were more on the conservative side in religious side that didn’t wanna have to give money to some of these groups. And so, it was really interesting. I was on some public forums on this. I was at the Supreme Court when the hearing took place, and I was pretty much on the side of calling the compelled speech.

And I think I was wrong. I now agree that the system works. It’s a good system, as long as you abide by viewpoint neutrality. Problem is that it wasn’t viewpoint neutral. Though Southworth who brought the case conceded, it was stipulated for the court that it was viewpoint neutral. You could see what it to bring the whole system down. If the court rules that as compelled speech, even if the system is viewpoint neutral in terms of allocating funds for student groups, then you can pretty much do away with the whole system if people don’t wanna give their money.

Nico: And just for our listeners who can probably read through the lines from what you’re saying, the facts of the case were essentially that, like most, you pay a student activity fee and that’s distributed to student groups through the student government.

Donald: And it’s mandatory.

Nico: And it’s mandatory. And the student would, in this case, I forget the particulars of the University of Wisconsin system. But the student in this case was arguing that the distribution of the fees result was compelled speech.

Donald: Right. Compelled speech who’s now he’s being forced to give money that goes to groups he doesn’t like, okay? And so, that’s a compelled association aspect of it. And he wanted both the federal, the district level, at the appeals level, in the federal courts. Then it goes to the Supreme Court and he loses nine nothing. And the reason is that he’s stipulated that the allocation of fees was viewpoint neutral. And now granted the system very much tilts to the left.

This was the university of Wisconsin and Madison, right. A notorious or famous school for student activism. Most of it on the left-hand side of the spectrum, but that’s just the way the marketplace works. As long as it’s not distributed in a viewpoint neutral way, then you just have to let the marketplace go where the marketplace is gonna go. More student groups happened to be liberal. Then so be it.

Nico: Or more student senators.

Donald: Right, whatever it is.

Nico: Well, I guess in that place, I mean, the student senators can’t vote to fund or not fund a group based on viewpoint.

Donald: That’s right.
Nico: So, I guess you’re right then it would’ve been it’s based on how the composition of the student groups.

Donald: But I tell you what, I had a student who was very much in favor of student funding who also opposed how they did it. And she was in one of my seminars. After the seminar, she brought me to the meeting where they decided whether or not to fund Southworth. Excuse me. So, I just happened to be at that meeting and it was awful. All these, ‘We’re not gonna give money to this jerk. He is a conservative Christian.” So, it was indeed viewpoint, non-neutral.

Nico: And was that not in the discovery or in the facts of the case, the fact that you actually have students?

Donald: Southworth stipulated that the system was viewpoint neutral. So, it was never part of the case. If he wanted to go big and he lost because of that. But I tell you something, the university celebrated his loss.

Nico: It’s a bad lawyering, I mean, don’t let your client, I don’t know if he did it in an affidavit or what?

Donald: Yeah, yeah.

Nico: Or he did it in an interview?

Donald: Yeah, well, actually I took place in a mock trial or moot court exercise in Milwaukee with Southworth’s team. And I offered to do it for the other side as well. And they just said, “No, we don’t use your viewpoint neutral on it.” So, yeah, the Supreme Court just said, “Look –” partly it’s courts also defer to other institutions. And they said it was a valid pedagogical reason for having the forum. And we will largely defer to the university if there is a valid pedagogical reason. That competitive with other school cases, the pedagogic reasonable pedagogical purpose test.

And so, he lost and the university celebrated. And I went home that night though after the court case came down and I said to my wife, I said, “Damn it you know what, they have to be viewpoint neutral now.” And so, in that sense, Southworth did win, even though it wasn’t a particular victory that he wanted. And as far as I know since then, if you have some involvement with some other cases, the student government has striven very conscientiously to be viewpoint neutral. It’s hard thing to do. And then, what if one group has 20 people and another groups has a thousand people there’s a lot of different criteria they have to try to weigh. And so, there are a lot of grounds in which you can maybe bring a lawsuit, but they’ve really tried hard.

There have been a couple other lawsuits after that, that came about and they had to get their act together more, but on the whole I think they’ve carried out the viewpoint neutral standard pretty well.

Donald: Well, I remember when I was at Indiana University, I was involved with a student group that was seeking to – And I was a libertarian student in college seeking to bring an economist to campus and the student government before it would give us the funds – We were registered student group – the funds to bring them went to the economics department and said, “What do you think of this guy?” And you can imagine at a school like Indiana, they weren’t big fans of the libertarian economist and we were denied funding on that basis.

So, in that sense, was it viewpoint discriminatory? Probably, but you also have the bandwidth to do your due diligence and go to the academic departments and ask, well, is this person have sufficient credentials and experience to warrant the $1000 or whatever it was, and we’re gonna give, and so how do you weigh that? How do you weigh –

Donald: That’s a tougher decision because that’s where universities want to have some control over this. You don’t want to spend a lot of money just bringing in total quacks because we’re intellectual institution, right? We have intellectual standards. We don’t hire quacks to teach. But some people argue we do too much of that now, but we’re not supposed to, right? It violates our norms. And I don’t think there’s necessarily, it depends again on how it’s applied, but in Wisconsin, in order to get certain support from security or the organization that allocates rooms, you have to get a sponsor and it could be any faculty member.

And if you don’t get that sponsor, you can still bring somebody in, but then you don’t get some of the benefits that allow that facilitate and assist in that process. And, I don’t know, I’m ambivalent about that a bit.
Nico: Well, it’s tough because it’s a burden or even attacks on more outside the mainstream or controversial student groups.

Donald: That is very true.

Nico: And that sense the effect is viewpoint discriminatory, right? ‘Cause if you’re outsourcing the decision-making to faculty members who are not going to become the faculty advisor for the alt-right student group, then you effectively can’t have an alt-right student group with the same benefits as other student groups.

Donald: That is true. And that’s a problem. That’s why, if you’re gonna go this route and you have to put in safeguards to the best of your ability.

Nico: Yeah. And I know of faculty members, because FIRE has dealt with this issue from time to time, there are faculty members who will on principle be the faculty advisors for these groups.

[Crosstalk]

Donald: I was one of those.

Nico: Oh, were are you?

Donald: Many times.

Nico: Yeah. I mean, it’s important. And I know there are other systems which if you cannot find a faculty advisor on your own, the administration will assign you one and there’ll be –

Donald: Well, okay. That’s good. I totally approve of that.

Nico: Yeah. They’ll serve just an administrative role in that sense, but –

Donald: Right, right.

[Crosstalk]

Donald: I think it’s a problem. I agree.

Nico: Yeah. You need to come up with some solution and I understand why you wanna have a faculty advisor involved as a liaison between the students and the administration. And to make sure that there’s no mismanagement of money or any other funny business that might be happening. But I realized we’re already at the 45 minutes that I –

Donald: It happens with me. I’m sorry.

Nico: No, no. If you’re willing to stay on, I’d like to continue the conversation for a little bit longer because where we left off and your career timeline was with the faculty speech code –

Donald: It’s early in the game.

Nico: I know it’s early in the game, but if we can speed up the timeline a little bit. Did you end up defeating the faculty speech code or was that, or was CAFAR or the committee for academic freedom and rights established to help defeat it? Or was it established in the wake of –

Donald: We were already there.

Nico: Okay.

Donald: We had formed in 1996 over a notorious case in the history department here. CAFAR had two functions. It was one, to defend faculty members who had been problematically – I say problematically ‘cause it would depend on what we found out once we looked into it – accused of having violated university rules that dealt with speech. And we had about 20 some cases over the years. We were together from 96, through 2016 when I retired. Then we disbanded. We had 20 some cases here in other schools in Wisconsin.

And we had satisfactory conclusions to virtually every one of them. And so, that was our one purpose outside funding, a $100 dollars –

Nico: From the university?

Donald: Oh, it was from the Bradley foundation.

Nico: Okay.

Donald: But they had no strings attached, a 100%, our autonomy, we pick cases. We defended a few left-wing speakers because there was some censorship of debt going on in the system.

Nico: Yeah. What was the history department case that kicked it off?

Donald: Yeah, got another 45?

Nico: No, actually I don’t.
Donald: It was an improper investigation of a professor for alleged discriminatory teaching and pedagogy. And it was a trumped up thing. Pretty much set up in response to another case in which the activist didn’t think the proper penalty was inflicted. So, they came up with this investigation and it was improper. And the target went through the attorney general of the state who became our governor later, Doyle, and told him about it. And Doyle called the university and said, “You better lawyer up and stop doing what you’re doing.” And then, so our group formed out of that very nonpartisan group.

And then, we had several other cases. Plus we devoted ourselves to policy and to campus politics. And the first big political victory was the faculty speech code because we found out about Richard Long. What happened to him? The guy I mentioned earlier called him from McFarland.

And we found out about some other cases that nobody knew about and we made them public. And we generated support to build a movement on campus to abolish the faculty speech code. And we were the first university in the country to resend a code without being ordered to by a court. It was due to a political movement that we won through the faculty Senate. And it was a year and a half or two year movement in which we mobilize and build up support. And we found out we had a majority of the faculty Senate on our side. We were like, “Wow.” We thought we were these free speech crazies out there on the margin and stuff but we were mainstream because we ignited the silent majority.

Nico: Was this faculty speech code a system-wide speech code? ‘Cause I remember when I was at Indiana University, some of the worst speech codes were system-wide. And when you say two years, I mean, two years would be a fast track to get rid of a system-wide policy.

Donald: Right. Right. Light speed. The student code was system-wide. That’s why I had to go through the board of Regents. And the Regents never adapted that reform I mentioned earlier because of IRV that came down right before they were going to endorse it. So, we haven’t had a student code since then in terms of regular speech. The others we that can talk about, we don’t have the time. But I’ve been working on with Azar, with your group.

Nico: Yeah, Azar Majid.

Donald: I love him.
Nico: He’s our vice president of policy reform. And he’s just a dynamo. Him and his team –

Donald: Yeah, he’s a fantastic guy.

[Crosstalk]

Nico: – are just speech code slayers across the country.

Donald: The faculty code was specific to UWA Madison. So, we had to go through the faculty Senate to deal with that rather than the regions. And we want it. And this is – the FIRE was started around the same time.

Nico: 1999, yeah.

Donald: We had Harvey come out here. Harvey advised us. We had dinner with Harvey at my house. And I tell you, I was so into this movement that I didn’t even watch the Super Bowl the night that Harvey came over for dinner. I kept taking a break every 15 minutes to check out the score. It was a game, Atlanta against Denver. I didn’t even care really, but I’m a big football fan. So, I had to keep track. I didn’t even watch it because of Harvey.

Nico: Was that John Elway’s last game?

Donald: Yes, it was his last game. Mr. Ed, we used to call him, I’m a Raider fan and we always called him Mr. Ed. And –

Nico: Are you still a Raider fan now that they’re in Las Vegas?

Donald: I’m not happy about it, but it’s like the mafia, once you’re in, you can’t get out with the Raiders.

Nico: Yeah.

Donald: It’s not allowed. So, that was really, that launched us. And we did a bunch of other things after that. And actually, sometimes we were even brought into the administration to advise them because our group had some success and then FIRE started right after that. Was 2000, was it or 1999?

Nico: 99. Yeah.

Donald: Yeah. And I’ve got them in touch with Bradley. Bradley helped fund them so far. FIRE was sort of, you know, I mean, it was my course and your course would have been an article on it – excuse me – in Reason magazine called Breaking the Code. And he interviewed me and a bunch of other people.

Nico: We might have a copy of that article and –

Donald: Yeah it’s a famed article. And so, we were right there with FIRE at the beginning.

Nico: Now when you read and hear about these campus free speech debates, it seems like they’ve been with us forever. And it’s like, it’s just a natural, it’s like one of the things that we talk about in higher education. I mean, you can read inside higher ED every week and there are discussions about academic – But back then it was like, that core’s article and CAFAR, were probably on the cutting edge. Am I right? I mean, were these things that were part of the national discourse about higher education much before the 90s?

Donald: No, no. Speech codes were something new under the sun. Under that code under the pedagogical sun. And I mentioned in my new book, most previous waves of censorship on campus and in the country, they didn’t last forever. Right? There were cycles. McCarthyism died. This hasn’t. We have our interregnums, I call it, in my book, periods where things are relaxed and then boom, they come back. And the latest stuff, we have all these bureaucratic policies like bias reporting systems and the like. Microaggression policies, trigger warning policies, a lot of the training policies.

And those are meant to achieve through the back door, what speech codes attempted to achieve through the front door. But the front door was problematic because you have this thing called the First Amendment. And you have a university policies that guarantee the same rights to their faculty members as the First Amendment if they’re private schools. It’s a speech code, we won the verbal war. It’s a speech code and this is America. We don’t like speech codes. You don’t want no stinking speech codes. Right.

But these new policies, oh they’re not there to censor. They’re there to inform. And so, now you have these Orwellian policy – you saw that piece by the dispatcher about a year ago, about how bias reporting systems are being used?

Nico: Yeah. Well, we did the first big report. We had FIRE do the first big report on bias response teams. And it was Adam Steinberg, who is our director of individual, our individual rights defense program forehand. Something like our public records requested something like 250 schools to see if they had bias response teams and wrote, got collected all the data. And that really kicked off the pushback against them. But –

[Crosstalk]

Nico: Very much. So, the CAFAR was that emulated elsewhere in the country?

Donald: No.

Nico: And why not? Because, FIRE is only so effective, I’d like to think we’re pretty effective, but you’re gonna be more effective. If you have people at the institution, faculty members, especially who have interact with the students, are well-respected, know the administrators who are actually doing the work on the ground to reform these policies, and to protect each other. I mean, you’re all faculty members. It sounds like you’re protecting the rights of fellow faculty members. Why not emulate that?

Donald: Oh, so we are hoping that would happen. The book I came out with later was meant to do the cores article. Our movement was covered nationwide, all sorts of major media, New York Times, Wall Street Journal, national public radio, et cetera, partly because we pushed it that way. I was involved in group outreach to different media organizations. So, the whole country was watching. And a phone rang off the hook after that vote went through and we abolished the code. So, I was hoping for that. And when I worked for IHS, I’m no longer working with them by the way.

Nico: Oh, so scratch that introductory line. You should have corrected me.

Donald: The whole purpose of what I was doing there was exactly to do what you’re talking about. And it’s really hard to do. I often think of CAFAR as – it’s like an eclipse, but I really fancy one where a whole bunch of planets have to line up. It was just the right time at the right place. And the people we had on that, I had people on CAFAR – the first president before I became the president of it was Stan Payne. Probably the world’s leading scholar on European fascism. 28 books. I mean, you don’t mess with this guy. And we had several people like that in our group.

I was always looking up at them. And these are people you couldn’t dismiss as these are the campus kooks that are too committed to free speech. We had good cases that we gave as examples of why this stuff can be pernicious. So, it was a very fortuitous set of circumstances. A lot of campuses, you have one or two guys that feel this way, they’re isolated. They’re not able to develop that kind of synergy that to move – [inaudible] in his book that I talk about in both books about private truths, public lies, arguments of how like a Soviet union, no one liked communism in the Soviet Union anymore, but they could be afraid to speak out until –

Nico: It’s the emperor has no clothes situation.

Donald: Exactly.

Nico: And we here at FIRE, and I hear personally from professors every week who are disappointed with the environments and the direction that their campus is going in, but they don’t to each other because you have those private truths. They’re afraid of being ostracized. They’re afraid that the person that they want to go and approach about it is not on their side, but there’s more of them than they think there are because I hear from them. John McWhorter hears from them on our board.

Donald: Exactly. And look, Laura Kipnis, her book, she became a national weather vain. I stress this in my new book. I use her as an example. And suddenly she learned about all these cases all over the country she had no idea were going on because they were beneath the radar screen. So, the first thing you gotta do, and this is what I did initially when I made my conversion, I taught a First Amendment class. I had a lot of students. I was well known on campus. So, I spoke out and I was invulnerable, but couldn’t really – I had tenure and I had a following and I had some allies.

And so, we were able to speak out and at least give public presence to these principles and why they mattered. But we couldn’t get traction in terms of mobilization in policy innovation, until we got CAFAR to come together because of the event in the history department, which made campus in state news. And then, everything just crystallized. I can’t begin to tell you the amazement in the feeling of satisfaction we had when suddenly our voices, which were out there, that was the first step, get those damn voices out there because otherwise, no one’s going to be thinking about this stuff. It has a half-life principle. It’s not mana from heaven.

Nico: Or they don’t know that there are other people out there who think the same way they do.

Donald: And then, things here just came together and we were blown away. It was wow. And so, we were able to build on that over the years. Now Wisconsin has slipped back. I mean, it’s everywhere, but there’s still some stuff going on here that’s better than a lot of people know.

Nico: Yeah. Well, that’s, I mean, that’s the story. Student groups operate the same way. You’ll have a very active and successful student group. And then, the principal leaders, groups are often determined by their leadership, the success of them. And then, they’ll leave or they’ll retire. And the groups tend to deteriorate and become not as successful as they were before. So, you see that with faculty groups, it sounds like in the same way you do with student groups, but you also trained isn’t the right word, but inspired another generation of free speech advocates. One of the previous guests on this podcast was Ian Rosenberg.

Donald: Yeah. Yeah. He and I are gonna be doing a similar thing like this, between with his book and my book.

Nico: Yeah the fight for free speech.

Donald: With Madison Alumni Association. Yeah. You came right before all that stuff. He graduated in 95 and then all this stuff really started happening in 96.

Nico: Yeah but he refers to you as a mentor and Alex Morey who works at FIRE.

Donald: Oh, sure. She was my PA.

Nico: Yeah. And she became inspired by these issues through you. And I’ve heard from other people who’ve gone through your classes and had you as a mentor who were inspired to become activists in this work.

Donald: First thing, you’ve got to tell faculty they’re reluctant, it’s fun. It’s exciting if you get it right, but it’s a special situation like I said, but you got to find allies. We’ve dealt with some professors. There’s one from New Jersey that was here for a year who got persecuted in a totally wrong way, bad way. Whether it’s always wrong when you’re persecuted. Right. But he was accused improperly and he had no support. I mean, people would call him on the phone and say, “I’m sorry, I wish this weren’t happening to you, but they wouldn’t speak out publicly.”

Nico: Yeah. It’s the same case today. Same thing there all the time.

Donald: Yeah. And so, people are intimidated and things have given the environment now who knows? Look at this stuff that is going on at Princeton. And we got some good people there that are doing something to modify the way that you’re about to hear even more about probably fairly soon. But without those people – he was a professor at Princeton – what they tried to do there with that faculty letter –

Nico: Oh, yeah. I remember, yeah, over the summer.

Donald: Yeah, and he said, this will lead to a civil war.

Nico: Yeah, yeah, yeah. And thankfully there are great faculty at Princeton who are pushing back and we have some people with the Princeton connections here at FIRE, including Samantha Harris and Alan Charles Kors. And so, by way of closing your book free speech and liberal education the subtitle is a plea for intellectual diversity and tolerance, which is slightly different than free speech and academic freedom though related, right?

And this idea of intellectual diversity is almost a necessary requirement to protect against the censorship. It allows well intellectual diversity. It helps with the institutional disk confirmation that’s necessary in an academic environment, but also helps to check the biases and the more extreme inclinations that any mano group might have. Cass Sunstein, I refer to him often in the podcast, did a study of judges that found that you had more extreme opinions on a panel of three judges that all had the same opinion than even if there were just one dissenter.

Donald: That’s right. Yeah. It spreads out to the more extreme. Absolutely. I mean, intellectual diversity is a sign of intellectual freedom and tolerance, right. Because it’ll naturally happen at least to some extent. And also it’s a check and balance kind of thing. It’s a checker, using Roche’s term of checking the checking function of [inaudible – crosstalk] [01:02:45] –

Nico: Liberal science. Yeah.

Donald: So, that helps promote what universities are about, which is my chapter two, The Pursuit of Truth.

Nico: Yeah. Well, Jonathan Height says that most universities claim that they are in favor of the pursuit of truth, but right now they’re claiming that, but also acting like a social justice university. Said you can either be one or the other. You can be an activist university or a university pursuit of truth. But let me ask you this other question that throws a wrench in the intellectual diversity argument, which I’m very much in favor for, but a lot of the ways that academic departments make their name is to not have intellectual diversity.

You think about the Chicago school of economics, for example. You have a academic department built around a specific viewpoint, which can lead to more funding. So, long as you have not every academic department in the country who ascribes to that opinion, then you have the academic departments fighting against each other.

Donald: It was just like, excuse me. I don’t think that being a professor requires you to just neutrally lay out all the information and tell the students to make up their own minds. We make the best of the best teachers I had like Burns and there’s many others I could – I’m so indebted to people that influenced me that they had a point of view, but they did it in an intellectually powerful way that also engaged and was open to challenge.

And if a professor has a particular point of view, that’s different from every professor having the same point of view as you just said. Of course that applies to departments nationally. So, you want people that are committed to their truths. It’s a question of how you do it and then how those truths are. How they relate to each other at a broader scale.

Nico: Yeah. You want battles between different belief systems are arguments to happen. But if every department at every college in the country believes the same thing, then you never get that confrontation that is necessary to improve the knowledge base that we have now.

Donald: Well, I talk in the book in my chapter where I talk about why it all matters. It’s a key chapter, chapter seven. The last chapter is all about mobilization stuff. We’ve talked about much more practical suggestions on how to mobilize influences, things on campus. But I talk about Holmes and the famous [inaudible] [01:05:27] said, and he talks about fighting fates. And I mentioned Mill. He said he admires people that are so committed to pursuing something that’s narrow and deep. We want people that are willing to courageously confront others.

Who are willing to pursue something despite the cost. But most people are a little bit fanatical, right? Or they’re a little bit, you know, they’re committed. So, how does that relate then to the need for, quote and quote tolerance? And I said, well, one model then is to have a competition. So, as long as you have enough people that are like that, that are checking each other and have different views, then the marketplace is what resolves that problem. And then, those who make the policy for speech, not policy of the ideas, but the policy for governing speech, they have to have a different mentality.

Which I called democratic character. Which means that, yeah, you’re committed to an idea. You committed to a truth, but you harbor sufficient self-doubt in a way that makes you more thoughtful. And if anything, that’s what a university should be. It should make us more thoughtful. I say that over and over in the book, we’re here to train people to be better citizens, but mainly to become better citizens because they’re more thoughtful. And they understand that truth is a difficult thing to achieve and that no one has a monopoly on it.

So, you wanna guarantee that there’ll be open competition. This is the [inaudible] [01:07:07] let a thousand prejudices [inaudible] right. As long as they check each other. And then, there’s the other type that’s just “I have a truth, but I entertain a little bit of doubt. I might be wrong.” And that creates a different character. You take a deep breath and step back.

Nico: Yeah. Well, that’s the John Stuart Mill argument. What Greg Lukianoff, my boss and the president of FIRE, calls Mill trident. There are three main arguments or three main outcomes from any argument; you might be right, you might be wrong or you might be partially, right? All of them are bolstered by free and open discourse. If you might be right, you’re get a greater conception of your truth by a free and open encounter. You might be wrong, then you’ll have a chance to check your error or you might be partially right, and you’ll learn in which ways you’re partially right, and partially wrong.
Donald: Yeah. Well, Greg is awesome and is great on this stuff. I quote in the book Dana Villa who wrote a book called Socratic Citizenship. He’s a Randian scholar. He talks about how Socrates is really the basis of the pursuit of truth, but there’s also an ethical dimension. And he says that by pursuing the truth, we make ourselves better people because pursuing the truth also requires that kind of self-doubt and checking oneself, use of self-restraint.

And he has a line that I quote all the time. It says that, “Any idea, no matter how virtuous it appears, becomes a recipe for injustice, if it is not allowed to be challenged.” And that applies to all the pet policies, or the sacred things on campus today. We need to question everything and that spirit needs to be inseminated – disseminated somehow.

Nico: I remember I was hearing a speaker on campus. It was actually a speaker who was the spark for a big campus controversy at Indiana University, Pastor Douglas Wilson from Idaho. He famously debated religion with Christopher Hitchens on a nationwide tour, but he began his speech by saying, “I think I’m always right, but I don’t,” or “I always think I’m right, but I don’t think I’m always right.”

Donald: Right, right. That’s great.

Nico: Which I thought was a good way of putting it. I always think I’m right, but I don’t think I’m always right.

Donald Don’t want milk toast. Right. You don’t want people to, “Oh, I think I might be wrong. Usually I sort think, but I’m sorry. I think –” You don’t want that. You want strength, right? I mean, you want virtue, that you want thoughtfulness, that’s great. What was your major at Indiana?

Nico: I was a journalism major who ended up adding a double major with history. So, I thought I was gonna go into advertising and marketing, but I interned at FIRE in 2010. And Greg Lukianoff was in the market for an assistant when I graduated and encouraged me to apply. And almost a decade later, the rest they say is history.

Donald: Right. It seems a great fit. So, it’s great. I’m glad you went that route.

Nico: Well, FIRE’s is a great place to work. And especially for those who are principled and passionate, and for those who are looking for an environment much like the one that we’ve talked about, higher education being in this conversation, one where people from all different perspectives can come together around shared principles and values and that’s definitely here at FIRE. So, I think we’ll leave it there.

Professor Downs, we’ve been doing this podcast for four and a half years, and I can’t believe we haven’t had you on yet. It’s almost like water. You swim in the same environment as us. It’s like –

Donald: Yeah, yeah.

Nico: You’re always an omnipresence that it’s – but I’ll have to have you on again. So, thanks again for taking the time.

Donald: No, especially I think the last half we got into the mobilization stuff in the, you know, that’d be kind of nitty gritty of it. That’s really good stuff.

Nico: Yeah. I have been criticized by listeners before just assuming they know the background of the people I’m interviewing. So, I always try and get the autobiography or the biography, excuse me in there at the beginning. So, anyway thanks again.

Donald: Okay, well thank you and say hi to everyone there.

Nico: Will do. That was professor Donald Downs, and the book is Free Speech And Liberal Education: A Plea For Intellectual Diversity And Tolerance. This podcast is hosted, produced and recorded by me, Nico Perino and edited by Aaron Reese. You can learn more about So, To Speak by following us on twitter @twitter.com/freespeechtalk or liking us on Facebook @facebook.com/sotospeakpodcast. We also take email feedback at sotospeak@thefire.org. If you enjoyed this episode, please consider leaving us a review on Apple podcasts or Google podcast. Recently rebranded from Google play. Reviews help us attract new listeners to the show. And until next time, I thank you all again for listening.