‘So to Speak’ podcast transcript: Harvard Law Professor Randall Kennedy

By February 16, 2018

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

Nico Perrino: Professor Randall Kennedy, thanks for coming on the show.

Randall Kennedy: Thank you so much for having me.

Nico Perrino: So, you write in the first paragraph of your essay, “The Forgotten Origins of the Constitution on Campus,” – you write that recent conflicts on campus have featured, as antagonists, proponents of racial justice on one side and proponents of civil liberties on the other side. And you go on to write that this is, “an avoidable and politically destructive strife.” I’m assuming it’s this strife that prompted you to write the essay. Was there any particular moment during the strife that caught your attention, or were you looking at a trendline of sorts?

Randall Kennedy: Well, a couple things. First of all, this political matter is one of the sources for the motivation for writing this piece. And one thing that has troubled me over the past several years, actually, is this pattern I’ve seen on my campus and on other campuses in which you have champions of racial equality squaring off sometimes – or feeling like they need to square off against people who view themselves primarily as champions of civil liberties. And one of the things that I wanted to point out to people is that over the course of American history, these two camps have usually been together.

If we take a look at the 19th century, for instance, the people who were the strongest champions of civil liberties, fighting against private forces that were seeking to muzzle people, fighting against public sources that were fighting to muzzle people – who were those people? Those were the abolitionists. It was the abolitionists that really educated the American public to the need for freedom of expression, more than any other group.

Nico Perrino: Yeah. We often talk on this podcast about Frederick Douglass’s famous plea for free speech in Boston in 1860, in which a group of pro-slavery rabble rousers break up an abolitionist meeting in Boston. And Frederick Douglass says in his essay after the fact, freedom of speech also means the freedom to listen. And the idea that you come to our meeting and prevent not only us from speaking, but other people from hearing our case, is a violation of two rights of sorts.

Randall Kennedy: Well, abolitionists over and over and over again said, “Let the slave powers speak. We have faith in our message.” In any event, in the 19th century, the abolitionists marched with champions of free speech. In the 20th century, again, if one takes a look at the Second Reconstruction, the Civil rights movement. The Civil Rights movement, of course, when people think about the civil rights movement, they think immediately and rightfully of progressive advances in terms of the protection of people against racial discrimination, both private and public. They think of the attack on de jure segregation. They think of the attack on private racial discrimination through, for instance, the Civil Rights Act of 1964.

They think of the attacks on racial disfranchisement through, for instance, the Voting Rights Act of 1965. But one thing that people don’t think about enough is the libertarian blossoming that occurred – the libertarian renaissance that occurred in the Second Reconstruction. The New York Times vs. Sullivan, in which the news media was given insulation against potentially ruinous libel judgements through a supreme court that wanted to protect news media. And what did they want to do? They wanted to protect news media against authorities in the south that wanted to scare news media away, scare the news media away from reporting the facts of life about the Jim Crow horrors in the south.

If one thinks about the protection of mass dissent, throughout the 1960s in cases like Edwards vs. South Carolina and others, the court created doctrine to protect demonstrators against hostile local authorities. And then, to get back to my essay, one of the things that frankly surprised me – I didn’t know until fairly recently that the leading cases in which federal judges recognize federal constitutional rights in student protests or in student expression or in student life, generally – the leading cases come from Black students in the deep south who were engaged in protests. And what these faced was summary expulsions.

And these students finally got lawyers, and the lawyers got the courts to say, basically, listen, students are entitled to, at the very least, a hearing.

Nico Perrino: And notice, yeah.

Randall Kennedy: And notice and the rudiments of due process. And from there, then courts started building from that, and saying “well yea, students are also entitled to First Amendment rights.” So, my point here is that there is no necessary conflict between champions of racial justice and champions of civil liberties. Now, have there been times in American History in which there has been conflict? Of course. In the early part of the 20th century, for instance, the National Association for the Advancement of Colored People sought to suppress Birth of a Nation. NAACP sought to suppress what they viewed as group vilification. So, there have been tensions, and there are tensions now, and of course, there will be tensions.

I don’t wanna be a Pollyanna about it. But it’s not necessary, and I think we should spend more time recognizing that just as a historical matter, as a sociological matter – in my experience, if you take a look at people who are strong on civil liberties, usually, those people are also very strong on civil rights.

Nico Perrino: Well, I think one of the tensions that at least young people see today is that when they look at the courts, and they look at what speech is being protected, it’s often speech that seems to run contrary to concerns over social justice. Perhaps a prime example is the Westboro Baptist Church protesting outside of the funerals of dead American soldiers because of the cultural and legal shifts in America over gay marriages, as bizarre as that sounds. Or, alternatively, they see the court is protecting protests outside of abortion clinics.

But these people lose sight that the principle being defended in these cases is a neutral one, and that should the pendulum swing in their direction, these same principles would be there to defend their expression and have, historically, protected their expression. But maybe it’s not as public or happening to the same extent that it was in the 1950s and 60s. Do you think that’s the case?

Randall Kennedy: Yes. I think that’s the case. And one of the things that I think would help would, again, be just more information. So, when I talk with students who say exactly what you just said, I say, “Listen, let’s go back in time for a moment, and let’s take a look at some of the people, again, in the Second Reconstruction, in the civil rights movement. These are people who were in the trenches, facing White supremacy face-to-face, who were some of the most stalwart defenders of civil liberties.” You have people like Eleanor Holmes Norton, a Black lawyer who worked with the American Civil Liberties Union.

One of her cases was a case in which she was protecting the civil rights of, of all groups, the KKK because she wanted to protect civil liberties. She understood that there would be times when it would be Black groups, or groups aligned with the Black cause that needed a strong public opinion that recognized the importance of protecting civil liberties, freedom of expression, even when that freedom of protection protected those who you didn’t like, who appalled you, who you really opposed in the deepest way. Or another person, my former boss, Thurgood Marshall.

Thurgood Marshall wrote the opinion that’s credited as the leading opinion standing for the proposition that equality itself is a central requirement of constitutional notions of freedom of expression. So, again, it would be helpful for people to have a longer view of history and a fuller mastery of history. I think that would go a long way in enlightening people and in sensitizing people to the importance of freedom of expression. There are gonna be times when reactionaries are going to be protected, yes. Okay.

Nico Perrino: And today, they see that as Richard Spencer, as Milo Yiannopoulos, as some conservative commentators like Ben Shapiro and Ann Coulter. But it was their side 40 years ago.

Randall Kennedy: Absolutely. And by the way, we don’t have to go back 40 years. The fact of the matter is that you don’t have to scratch far to see efforts to squelch multiculturalist opinion, progressive opinion. You think about it, it’s very disturbing to see the alacrity with which people are willing to use force to silence those who they don’t like, whether it’s people who are kneeling down at football games, whether it’s people who don’t want to salute the flag, whether it’s people who want to voice opposition to the political status quo.

Again, at this moment in particular in American history, when we see the most traveling signs of authoritarianism or, sort of, authoritarian habits coming to the fore, now we really have to have our antenna up to respecting civil liberties. To respecting, really, one of the great things about our society, which is our openness, our willingness to let pluralism bloom. It’s not perfect, of course, but if one takes a look around the world, one can say that this is one of the things that makes American society actually quite attractive.

Nico Perrino: When we look at the 1950s and 60s and phrases such as civil liberties, civil rights, racial justice, social justice – was there ever a distinction then between these civil liberties to freedom of speech and due process and assembly and the closely held civil rights, when you think about racial justice? Or is that a distinction that has more come into being in recent years?

Randall Kennedy: No. There’s a wonderful article about just this very issue, written by a guy named Christopher Schmidt – S-C-H-M-I-D-T. It’s called, “The Civil Rights-Civil Liberties Divide,” and it’s available online. It’s a very nice piece. And he follows the history of the term civil liberties as distinct from civil rights. I’ll leave it to him to go through the history. He writes a very good article about this. I think nowadays, when people think of civil rights, they think of protections against discrimination – usually, they think of protections against racial discrimination, but it’s gotten a little bit broader of course. People think about sexual orientation, think about gender, think about disabilities.

But it’s usually civil rights, it usually connotes protections against some sort of unfair discrimination, whereas civil liberties typically connotes protections against governmental overreaching. Interestingly enough, I’d say recently both have become broadened. So, when people think about civil rights today, they often think about protections against both public and private bias. And when think about civil liberties, whereas an older notion would have been protection against governmental overreaching, I think nowadays when people talk about civil liberties; they’re starting to think more and more about both private overreaching and public overreaching.

So, both of these terms are terms that I think have been broadened recently.

Nico Perrino: Is there a skepticism of either one of these terms today? Do you see a greater skepticism of not just freedom of speech but of other civil liberties like due process amongst today’s advocates for racial justice or social justice? I recall that you signed onto the letter at Harvard discussing some of the due process concerns – I believe it was the due process concerns related to an issue of sexual assault at Harvard, and it resulted in your being protested at Occidental.

Randall Kennedy: Yes. Two things. Number one, again, I think that we need more public education. We need to recognize that a lot of struggle has gone into claiming basic, fundamental, rudimentary rights – notice, hearing, presumption of innocence. These things didn’t just fall from the air. People had to struggle for this, and we oughtn’t surrender these things easily. And we ought to recognize that these are fundamental protections, and we ought to jealously guard them. So, that’s one thing. Second thing. You mentioned protest. That’s right. I was protested. I thought that the people protesting me were just mistaken, but one thing I wanna say about this is, the people who were protesting me, they were using their civil liberties, too.

They had every right to protest me, and that’s fine. I think that they were incorrect. I went out there. I debated them. But I don’t think that it’s a wrong thing for people to use their voices to push their political agenda. Fine. That’s exactly what people should do, and I don’t think there’s anything wrong with that. I think that sometimes people are wrong. I think they’re incorrect, and so I will debate them. But I’m not gonna attempt to shut them down.

Nico Perrino: Yeah. We at FIRE find ourselves in a tough position in recent years because on the one hand, you have students protesting. They’re protesting racial injustice on campus, and that’s protected speech, and we would go to the mat to defend them. But while doing that, some students are also protesting in support of speech codes, or protesting in support of fewer due process rights for students accused of misconduct on campus. And that’s also protected speech, but it’s protected speech that we disagree with fundamentally.

And while we would still protect them if they were ever punished for exercising their rights and protesting free speech or due process, we, at the same time, have to push back on this normative concern, on this cultural idea that these things are bad and should be restricted in this manner or another. And I look and also see a sort of – I don’t wanna use the word hypocrisy, but it is almost a hypocrisy on the due process front because we have a great awakening at the moment surrounding criminal justice reform. And at the same time, you have calls for making it easier for people to be accused and convicted, or found responsible for, campus crimes.

It’s as though the principles that we find important in the criminal justice system are no longer important when you see these principles violated in other systems. And, of course, on campus, there’s no life or liberty at stake, but in some cases, it could affect your ability to find a job. It could cost you hundreds of thousands of dollars if you’re expelled from a university in which you’ve already paid your tuition. It could mean you don’t get security clearances for jobs. It could mean you’re branded this, that, or the other thing. So, there’s this cultural appreciation, and there’s this legal appreciation, and it feels to me as though the cultural appreciation is diminishing.

And that seems to be what your concern is as well when you talk about education.

Randall Kennedy: Yeah. A couple things – couple reactions to what you just said. One, I think that we have made some strides in pointing out that we really live in a hyper-punitive culture. That’s one of the more unattractive features of our culture. We are just too punitive. So, you know, we talk about mass incarceration, and I’m glad that there’s been this focus on mass incarceration. We over-punish, and we, therefore, raise the misery index in our society, and we ought to be against that. And I would say similarly, let’s keep that in mind so that if we’re talking about people who are doing things that we don’t like – and it could be criminal things included. Let’s say criminal things.

Obviously, we need protection. Obviously, we need deterrence. But for goodness sakes, let’s remember the misery – the gratuitous misery that has been caused by our hyper-punitiveness. And we need to keep that in check.  Now earlier, you talked about codes. One of the things that concerns me about the discussion of civil liberties-civil rights on campus is I think we lose track sometimes of the overall context. So, we’ll read an article that will begin by giving 10 instances of horrible racial epithets being hurled at people of color, or sexist statements, sexist gestures – 10, let’s say 15. Now, I read that. I think that that’s important to take into account.

At the same time, it’s also important to take into account how many universities there are in the United States.

Nico Perrino: Yeah, over 4,000.

Randall Kennedy: There are thousands. It’s important to take into account how many students there are in the United States. Hundreds of thousands. Now, in a society this large, in a place with so many students, one has to take into account – 10 examples, 20 examples. Frankly, 50 examples. Is this characteristic? Is this an outlier? We need to be, I think, a lot more attentive. And by the way, I would say that on the flip side as well.

So, for instance, if you point out examples of people wanting to shout down speakers on a college campus – you know, bad. But for goodness sakes, and you can give me an example – you know, Middlebury College or this college or that college, but again, we have to be attentive. There are lots of colleges in the United States. What’s characteristic? What’s the outlier? We need to work harder, I think, at keeping everything in perspective.

Nico Perrino: Well, one of the differences among many of these colleges is that most of them are two-year commuter schools. They’re community colleges. They’re junior colleges with a mix of traditional and non-traditional students who don’t have the same sort of campus life that, for example, a Harvard or a Yale or many of these bigger state schools will have. So, you don’t have the same robust protest culture, so it’s less likely that you would see some of these incidents occurring there. Although, we have seen many incidents occur on community college campuses or junior college campuses.

Most recently, we filed a lawsuit on behalf of a socialist student handing out “Stop Capitalism” flyers in protest of a conservative student group. And she was detained by the police for 40 minutes and told by the police, “You have free speech but it needs to get approved by us first.” So, we of course filed a lawsuit there. But that sort of case doesn’t get the attention that a heckler, for example, at Harvard might. Not just because it’s a community college, but also because Harvard is Harvard, and Yale is Yale. You’ve been on a campus for a very long time. You’ve worked in higher education longer than I have.

Have you seen a change in the culture, even if it’s not examples like an Allison Stanger at Middlebury getting whiplash and having to be put in a brace because she wanted to interview Charles Murray, but a cultural chilling effect as a result of maybe even just the discussion of some of these issues, or the concerns and the language that’s being used?

Randall Kennedy: I have been surprised, I have, because I must say, sometimes I have been skeptical at the claims, for instance, that your organization has voiced. Sometimes I’ve thought that you all have overdone it, that you have depicted the campuses as more censorious than they are. At the same time, there have been events that I have seen in which people have tried to shut things down. And then actually more interesting to me, or more telling to me, than the actual efforts to shut things down is what occurs afterwards. Frankly, more chilling to me sometimes has been the defenses of the people who have shut things down. Because, you know, it doesn’t take that many people to shut things down, to tell you the truth.

And it could be that you just simply have a few hotheads. But then, there will be the debate afterwards, and there will be people who will be defending this. And it’s at that point that I say, “Whoa,” because now people are being deliberative. They’ve had a chance to think about it. And even after they’ve had a chance to think about it, they are defending a truncation of public discourse in a circumstance in which it really is unjustified and unjustifiable. And that, to me, is a problem. Here’s a thing that I’ve been preaching to students on my campus that I don’t think has gotten the traction that I would like to see it get. So, for instance, at my campus – here at Harvard Law School over the past, let’s say, 10 or 15 years.

From time to time, there will be some event, there will be some episode in which somebody will say something that is deemed to be racially discriminatory, racist, and students will come and say, “The administration ought to do something about this. Don’t you think that, Professor Kennedy?” And my response to them will be, “Listen, you guys are ceding your power to the authorities. You students actually have much more power than you think that you have. Why in the world do you want to haul Big Daddy or Big Momma – that is, the dean or the president – are you seeking to go back to make the school authorities your parents, for goodness sake?

What you want to do is take your power and use it. So, there’s nothing like public opinion. If a student has said something that you think is really quite offensive, what you ought to do as far as I’m concerned is write an open letter in which you first detail what has happened from your perspective. You voice your objection publicly, transparently. You voice your objection. And you give the student a chance – number one, is that what happened? Again, notice. Maybe you’re skewing it wrongly. Is this what happened? It this is what happened, we object to it, and we demand that you apologize.

And you tell them, “And if you don’t apologize, we are going to turn to our fellow students, and we are going to tell our fellow students that we think the public opinion should be allayed against you. To tell you the truth, that is a very powerful weapon. That is a very powerful weapon of discipline. And I think it’s open, it’s transparent, and it gets Big Momma and Big Daddy out of it. It’s a student thing. I think that you could accomplish a lot doing that.”

Nico Perrino: But is there a generational divide there? So, I was struck a while back by a paper written by two sociologists, Bradley Campbell and Jason Manning, which talked about various moral cultures in recent centuries. For example, there was a period in which we had an honor culture, where people must earn honor and therefore, avenge insults on their own. We think of the duels that Alexander Hamilton and Aaron Burr had, for example, where they were avenging their honor. And then during the civil rights era, you seem to have this culture of dignity in which people assumed that their dignity was inherent and that it wasn’t dependent on the perception of anyone else. And they didn’t need to earn it because it was part of who they were as a person.

And then you have today what seems to be a culture of victimhood. And I don’t love the word victimhood, but it seems as though people are being encourage to respond to even the slightest unintentional offenses as an affliction on their honor – almost a return to the honor culture, but that honor must be avenged not by themselves but an appeal almost to a third party. An administrative body, if we’re talking about college campuses. And there seems to be a sense that they’re dignity isn’t inherent, or at least they don’t seem to feel it’s as inherent as maybe the civil rights leaders of the 1950s and 60s did.

Randall Kennedy: I don’t know. One of the things that is concerning me is that the rules and regulations and habits that we design for ourselves actually shapes our habit, shapes our self-perceptions, shapes our strengths and our weaknesses. Now, if we get in the habit of saying, “I feel traumatized. I feel hurt. I am hurt.” What is that doing to us? One of the things that I say to my students, especially the progressive students who view themselves as people who – they want to go out in the world and change the world for the better. And I’m with them. I tell them, “I’m with you.” And I say to them, “To change the world for the better, you have to be tough. The world is tough.

It is difficult to move the world in a good direction even a millimeter. And to have that toughness, you’re not gonna be able to just – somebody says something and what? You’re gonna say, ‘Oh, this has penetrated to the quick of me? This has drawn psychic blood from me?’ How are you going to be my champion? How are you going to change the world if you can be hurt that easily, if you can be traumatized that easily? No. You should laugh. You should say, ‘What? You think that that’s going to hurt me?’ You should laugh and march on.” And here, again, think about what – one of the reasons why I keep going back to the Second Reconstruction is I’m writing a book about the civil rights era.

And one of the things that I love about the book, and one of the reasons I love actually writing it is because it forces me to encounter so many inspiring people. I want to say to students, “What? You think that John Lewis was hurt to the quick and was traumatized when people called him nigger? What are you talking about? That was a light day for him. You’ve got to be strong. And to be strong, let people talk. Let people throw things your way. Toughen up and march on. And I think if you do that, you will create within yourself a stronger self – a stronger self which will allow you to do those things which will need to be done to, you know, move our society up to a higher level.”

The long and the short of it is one of the things I guess I don’t like about this sort of frankly, sometimes, crybabism – “I’m hurt. I’m traumatized.” Forget that. Are you kidding? Look at the world. Every day there are hurtful, terrible atrocities going on all over the world. You are going to have to proceed in the face of that. And to proceed in the face of that, you’re going to have to create for yourself a way of being that is tough. And you cannot be tough, it seems to me, if we’re in the habit of constantly saying to people, “Well, we know you’re traumatized. We know your feelings are hurt. What can we do so that you don’t have to have hurt feelings?” I don’t think that’s a good thing, those are not good habits for social reformers to inculcate.

Nico Perrino: Or for even mental health. A lot of what you’re saying there reminds me of some ancient wisdom. The Buddha said, and I’m paraphrasing here, “Refuse to be hurt, and you have not been hurt.” Shakespeare in —

Randall Kennedy: Stoics.

Nico Perrino: Yeah, the Stoics. And Hamlet says, “There’s nothing good or bad but thinking makes it so.” How you internalize and interpret the world, and in its essence, say to yourself how you want to be can result in you being that way – can result in you not being hurt. But one thing I wanted to ask you about as someone who speaks on campus often – you tipped your hat to some of the common arguments that we hear against freedom of speech and other civil liberties today, the idea that people like Milo Yiannopoulos or Richard Spencer come to campus.

And one of the common phrases we hear is, “They deny my right to my humanity, and therefore, my shutting them down, my,” in some cases rioting, as we saw at Berkeley, “is self-defense.” After the Berkeley riots on February 1 of last year that caused $100,000 in damage and shut down Milo Yiannopoulos’s speech, the Daily Californian, which is the student newspaper at Berkeley, ran a symposium of sorts on their op-ed pages under the title, “Violence as Self-Defense,” in which a number of students came out and said, “What Milo Yiannopoulos was going to say would be traumatizing to us. It would inflict emotional injury,” often conflated with a sort of physical injury.

And that, “Our speaking up, our protesting, our rioting, the presence of black bloc, therefore is just self-defense.” How do you respond to that? Because when I go to campus, I have a hard time doing it because they say that I don’t take their emotions seriously, that I am leaving them vulnerable to both physical and emotional injury. And then when I try and investigate the claims in a Socratic method, I get dismissed as speaking from a place of privilege. So, how do you respond?

Randall Kennedy: I respond by saying a couple of things. Number one, I respond by saying the people that you just mentioned have actually benefited tremendously from these riotous responses that they’ve gotten. I simply do not understand how the adversaries of some of these racists – I do not understand how they can’t see that they have benefitted. Just take a look at the speaking fees. Take a look at the number of invitations. Take a look at the publicity that some of these people have received. At a tactical level, it seems to me self-defeating. This fellow Milo, and I can’t pronounce his last name.

Nico Perrino: Yiannopoulos. And you’re right. His book rose to number one on Amazon the day after the riots.

Randall Kennedy: The day after the riot, I saw him on Fox News. The guy was grinning ear-to-ear. He loved it. He loved the attention. Frankly, so people ought to remember that in these struggles, there is always a very large number of people who are observers. Frankly, there’s a relatively small number of people who come to any of these events. Even the biggest of these events really draw a fairly small number of people. A much larger number of people are people who are observing. They’re not watching this stuff day-to-day-to-day, moment-to-moment. They’re just observing, and then they see this guy come, and people riot.

And then people say, “Woah. What is this guy saying that requires a riot in response?” That’s just the most natural thing for people to think. So, at the strategic level, I don’t like it. Another thing I say is “listen, let’s really be careful.” It would be one thing if you told me that there were 100,000 Nazis marching down the road. If you told me that, and that was true, you would certainly have my attention, and I think we would be having a somewhat different conversation. That’s not the way it is. The fact of the matter is – and again, I’m alarmed by various tendencies in our society, but fortunately, we are not confronting 100,000 Nazis walking down the road.

These people, frankly, are on the margins, and I think that the way in which the people at Berkeley, by rioting, actually we exaggerated the power of these, people, these extreme right-wing people. We exaggerated their power. We fed them. We gave them a prominence that they ought not to have had. So, I think just at the level of strategy, there’s not a good payoff. It has been very helpful to them. It’s very helpful to them to be able to portray the progressive forces into society as the ones who want to shut down freedom of speech. Fortunately, in the United States, freedom of speech is something that really has prestige.

And so, if you’re trying to shut that down, there are a lot of people who might not know a whole lot. But if you’re trying to shut down freedom of speech, a lot of people are going to be instinctively against you. So, I would say you better be very careful if you’re on the bad side of the freedom of speech line. And again – yes, I talk with people all the time. “My feelings are going to be hurt by Milo. My feelings are going to be hurt by this one or that one.” And I say to them, “Listen, let these people speak. Let them discredit themselves. Can you do other things?” It’s not like I’m saying, “Be complacent.” No. We can’t be complacent. Don’t be complacent.

But you can hold a counter rally. You could appeal to your fellow students. Appeal to your fellow students. Let’s ostracize these people. Let’s let these people talk to a half-full auditorium. Let’s have a counter rally, a counter demonstration in which we talk about the sort of things that we want to talk about. There are other ways of handling this other than trying to shout down or suppress these people. And there’s another thing as well, and that is we always have to be attentive to the foibles of human nature. The people who engaged in the riot, I think that some of them, I would say – I disagree with them, but I think that some of them probably were authentically anti-fascists. I disagree with them strongly, but fine. They were authentically anti-fascists.

Listen, some of these people are just people who – they wanna riot. They wanna do something. They want to act out. They want to be on stage. And I think we have to be very careful about that. Just because somebody says that they are an anti-racist activist – we have to look beneath that sometimes and be attentive to, again, the foibles of human nature. Some people, some of the time, are just acting out. They don’t really care about the consequences of what they do. And that should be a problem – that is a problem for people who, again, want to organize dissent for the purpose of making ours a better society.

Nico Perrino: See, a lot of the arguments you’re making are ones that we at FIRE make when we go to campus. But some of us, we go to campus, and again, we are told we’re speaking from a place of privilege because some of us are White. Some of us aren’t LGBTQ. Some of us are male. Do you see a movement towards a soft resegregation in our public dialogue — the idea that you need to have a certain identity in order to speak? And you see this in other places with affinity dorms, concerns over cultural appropriation. You can’t write a fictional story about someone who’s different than you. There’s also opposition to interracial adoption which I know you’ve been involved in. What are your thoughts on that?

Randall Kennedy: It’s a real problem. In the classroom, it comes out like this. We’ll be having a discussion, and a student will begin his or her statement with, “Speaking as a,” and then blank. Sometimes it will be a White person who will start off with a self-deprecating reference to their Whiteness as a way of basically saying to the audience, saying to the classmates, “Listen, I know I’m White. Discount what I’m about to say,” and then they go on and make their statement. And what I frequently say when I hear this is, “First of all. Let’s knock it off. What did your parenthetical speaking as a blank have to do with what came afterwards? Either what came afterwards was worthy or it was not.

Now, just go on and say what you’ve got to say, and then after you’ve said what you’ve got to say, let’s let everybody have at it. Either it’s worthwhile or it’s not. The question of what your skin color is, the question of where you come from, the question of your parents’ socioeconomic status – let’s just let that stuff drop. Let’s stick to substance.” So, yes. The problem that you are talking about is a real problem. I think, frankly, that again, one of the reasons why, to go back to my point of departure – one of the reasons why I wanted to write this article. Nowadays, over and over and over, when you read about struggles over freedom of expression on campus, it begins with Berkeley and the Free Speech Movement.

Now, first of all, one thing that people don’t know is that Mario Savio and some of the other leaders of the Free Speech Movement – where did they find their voices? Where did Mario Savio find his voice? He found his voice – this White, young man found his voice in the deep south.

Nico Perrino: Yes, he did.

Randall Kennedy: He came back to northern California transformed by his experience fighting anti-Black racism, and he found his voice. And that happened with a lot of White people. That was one of the glories of the Second Reconstruction. People ought to remember that. People ought to remember, like I said – if you think about champions of freedom of expression within Black communities, Charles Hamilton Houston, Thurgood Marshall’s great teacher, a very strong civil libertarian.

Thurgood Marshall – strong civil libertarian. If one takes a look at the briefs of the lawyers fighting on behalf of the National Association for the Advancement of Colored People, fighting on behalf of the Student Nonviolent Coordinating Committee, fighting on behalf of the Black Panther party – one will see these people articulating the very notions of civil liberties, freedom of expression —

Nico Perrino: Due process.

Randall Kennedy: Due process. Skepticism towards governmental intervention. Skepticism and opposition towards overreaching of all sorts —

Nico Perrino: Because they saw what happened when there was overreach, when there was intervention. Yes.

Randall Kennedy: Absolutely. People ought to remember – again, people ought to remember that not so long ago, there was a concerted effort to silence Martin Luther King, Jr., to silence other civil rights leaders. And that’s one of the reasons why they were so attentive to civil liberties. Martin Luther King, Jr.’s first speech as a civil rights leader was at the very beginning of the Montgomery Bus Boycott. And in that great speech, extemporaneous speech he made, he talked about the great glory of American democracy being the right to protest. In his last speech, he said the same thing. And so, again, folks ought to remember these things as we try to grapple with our own —

Nico Perrino: Current challenges.

Randall Kennedy: Dilemmas and our own challenges. And as for the privilege – I’m Black. And so, I don’t get as much of that, though I get a little bit of it. I remember I wrote something, there was something that happened here at Harvard a couple of years ago – Harvard Law School, and I wrote something in the New York Times. And there were a couple of people who wrote back and said, “Well, you’re speaking as a privileged law professor. And you’re going to encounter that, and I guess what I would say is you have to proceed anyway. We have to be careful about mau-mauing. No, mau-mauing happened.

It happened back then as sort of a type of effort to shame White people, White progressives – shaming them, shutting them down, trying to silence them, trying to inhibit them. And that’s gonna happen. There is going to be a certain type of mau-mauing, and that just comes with the territory. And I think you simply have to be straightforward and say as clearly as you can what you believe. And by the way, this does not mean – and I’m talking to you directly right now. I’m talking to FIRE directly right now. It doesn’t mean that we are all going to agree on everything. We are going to have our disagreements. I’m gonna disagree with FIRE about certain things, I suppose.

Nico Perrino: We’d love to hear them.

Randall Kennedy: I’m sure.

Nico Perrino: It will make us better.

Randall Kennedy: But disagreement is one thing. Disagreement is part of learning. So, for instance, when you criticize – if I criticize somebody who is, let’s say, making an argument for speech codes. And I don’t like the speech code business. Again, I think that the whole effort to create speech codes on campus was destructive for my political camp. I count myself in the progressive political camp. That’s where I am. And I think that the speech codes were actually quite harmful. It made my political camp look like it was anti-free speech, skeptical of free speech, scared of free speech. And for what? These speech codes are so – first of all, all of them have been struck down when there’s been litigation.

And even if they weren’t struck down – forget about them being struck down. Even if they existed, they cover so little that they weren’t worth the candle. The fact of the matter is, in our law, we have protections against somebody coming up in my face and making racially motivated threats against me. Already – forget about a code. People can’t do that. That’s intimidation. That’s assault.

Nico Perrino: If it’s repeated, it’s harassment.

Randall Kennedy: It’s harassment. It’s not as if the society is stupid. We’ve got protections. We didn’t need to have that. And I think that the very effort that went into creating these things – it was a public relations disaster as far as I’m concerned. But when I talk with people about that, OK, I’m saying that. You disagree with me. That’s okay. Disagreement is part of learning. And it shouldn’t be viewed as something bad. It shouldn’t be viewed as a betrayal. It shouldn’t be viewed – sometimes I’ve heard people say, “Kennedy, you’re attacking us.” No, I’m not attacking you.

Nico Perrino: It’s the language of physical violence, almost.

Randall Kennedy: Yeah. What do you mean, attacking you? I’m criticizing you. Listen to what I have to say, and then –

Nico Perrino: Respond.

Randall Kennedy: Respond. And frankly, maybe your response will make me say, “You know what? You’ve got a good point. Let me revise what I said a few minutes ago. We need to discuss – without discussion, without criticism, we will not be able to learn from one another. And that’s what we need to do.

Nico Perrino: Yea, and to respond to a couple of the points that you’re making, if we’re concerned about the state of our institutions, whether on campus or off campus, the idea that you would give those very same institutions that wield so much power and engage in unjust actions the power to censor those people who are criticizing those institutions through speech codes seems tactically unsound to me.

Randall Kennedy: And here’s another thing about our current moment that I find to be very important. I have my disagreements with various educational institutions. I think that some of the institutions have not been attentive enough to the requirements and the challenges and the mandates of open expression. I think that. I also think that we need to be very attentive to the fragility and the preciousness of our institutions of higher education. And when people start making comments about, “Shut it down,” or making it seem as those these institutions are centers of oppression because they’re not being attentive enough to marginalized people, I think to myself, “What are you talking about?”

The fact of the matter is we need these institutions of higher education. There are no institutions in American life that are, in principle, and by aspiration, more attentive to the life of the mind and all that that entails, than our institutions of higher education. So, we need to be protective of them. One way to be protective of them is to call them out when they are themselves engaging in self destructive behavior. But we need to do all of that with, a certain, with an awareness of how important these institutions are to the functioning of a good, pluralistic, inclusive democracy.

Nico Perrino: And we’ve gone a little bit over our time. Do you have an extra five minutes here, Professor Kennedy?

Randall Kennedy: Yeah, sure. I’m having a fun time.

Nico Perrino: You say there, on the one hand, we need to keep these institutions honest and we need to ensure that they’re pursuing their mission of the mind. But on the other hand, we need to be careful not to, at the same time, destroy these institutions because they’re precious. But isn’t that kind of what some of the presidents of these Black universities were doing in the 1950s and 60s when they were, in essence, censoring their students or denying them due process. They were doing it at the behest of these White governors or these White trustees. And you actually talk about this tension in your article, and you’re empathetic to it.

You say they are in an impossible position, because if they didn’t kowtow to the demands of the governor or to the White trustees, then they could lose funding. And you could lose the pursuit that an academic institution is supposed to be doing. But at the same time, they’re throwing some of their students under the bus, denying them basic civil liberties. It’s the same sort of tension today that we saw then.

Randall Kennedy: Yes. And it’s a real dilemma, and it calls for judgement. So, for instance, I still stick by the proposition that institutions of higher education are extremely valuable. That does not mean, however, that I would be against suing them, if necessary, in order to prompt them to live up to their highest aspirations. Again, litigation is itself a sort of criticism, or propaganda is a sort of criticism, too – an op-ed piece criticizing a university. Again, it’s not an attack on the university. It can be a call for the university to embrace its highest principles.

Nico Perrino: And censorship is destructive of that, not just insofar as it restricts the ideas on campus – the marketplace of ideas, that is. But we saw in a recent Pew poll that over 50 percent of conservatives believe that higher education is detrimental to society at large – to the country at large. And there’s a sense that censorship itself – censorship of conservatives – has resulted in that feeling.

Randall Kennedy: Now, I’m gonna tell you. I will say this. I’m very impatient with the editorial page of the Wall Street Journal. When in episode after episode after episode, when they’re talking about political correctness, they focus on progressives at Middlebury College or other places – at Berkeley or whatever places – acting in ways with which I disagree. But what I wanna say to the Wall Street Journal is – I did not see you criticizing the Congress of the United States when it threatened to withhold funding from the Smithsonian Institution, when the Smithsonian Institution as part of its public education wanted to, let’s say, have a public exhibition about the Enola Gay and the bombing of Japan.

I think we have to be very attentive to the politics of this. I think, just like, I think that there is, that there has been a very powerful, conservatives’ opportunism, which doesn’t see its overreaching. It only sees overreaching on the other side. I think we need to be very attentive to that.

Nico Perrino: This is why it’s so important that we don’t let civil liberties become a partisan issue. I was hosting a panel at New York University recently in which Mark Lilla sat, and he’s a progressive professor at Columbia, recently wrote the book The Once and Future Liberal.

And on that panel, he said, “Don’t cede the civil liberties/ free speech on campus ground to Fox News/MSNBC. I would call on you to be the first ones out there when you see an abridgement of freedom of speech or due process, and to call those universities for the task. Otherwise, you cede this ground to conservatives, to Fox News, to the editorial pages of the Wall Street Journal. And the same goes for Fox. If you don’t want to see your people censored on campus, go out there and defend that right for everyone.”

Mark Lilla: [Recorded] “I’ve wanted to deliver a message to the people on MSNBC. And now that I have a camera, I will. To Chris and Chris and Rachel and Lawrence and Brian – the moment you see that there’s been an attack on free speech on campus, be the first to report it. Do not wait for Fox News to do that and to exploit it for their own ends. The people who should be most upset about what is happening on our campuses are people who care about liberal prospects in this country politically. And every time one of these incidents happen, it’s another nail in the coffin. And it’s your job to speak up first. You know where to reach me.”

Randall Kennedy: Yeah. I would agree with that. And I think that – Lilla. It’s funny. You called him progressive. Many of my friends see him as the enemy. I don’t understand why they see him as the enemy. Actually, I do understand. I just disagree with them.

Nico Perrino: They would probably call him a neo-liberal, which is a way of –

Randall Kennedy: And various things. The point is, he’s making a very strong point. And again, I tried to make it earlier when I said it’s a mistake – again, in American society – I’m very critical about our society. I think that our society bears the scars of injustice and cruelty of a wide array of dimensions, whether we’re talking about race, whether we’re talking about class, whether we’re talking about sexual orientation – I think there’s much, much, much wrong with our society. One thing, however, about the course of the 20th century is that various people, through tremendous struggle – I think of the American Civil Liberties Union. I think of your organization.

I think of other organizations. One thing that civil libertarians have been pretty successful in doing is raising the prestige of the notion of freedom of expression. That, it seems to me, is a very good thing. If you are against freedom of expression – there are a lot of people. They might not know about the particular struggle – they might not know about the particulars, but their antennae go way up if they get the impression that you’re trying to shut things down. They don’t like that. And I think that that is a good impulse in American life. And I think that it should be protected. And I think that it needs, it really needs to be nurtured because frankly, you know, we can talk about courts all we want to. I’m a lawyer.

The way I pay my mortgage is by teaching people the ins and outs of legal doctrine. I think that legal doctrine is important. I think that courts are important. But there’s something that’s more important than legal doctrine and more important than courts, and that is public opinion. Because ultimately, legal doctrine and courts will change if public opinion changes. And that’s why, apart from whatever happens in court, I say over and over again talk to your neighbors. Make the appeal to public opinion. And one of the things we’ve got to do is we have to steel public opinion. We have to reinforce public opinion so that it continues to view freedom of expression as something that is good.

We really do have to reinforce that idea as the default position. If that means saying, “listen, Milo is coming to down and wants to talk” – again, I have no truck with what he said. Let him talk, because we want to get the society in the habit of letting people talk.

Nico Perrino: Yeah. Justice Learned Hand, the former second circuit judge of course, said in a famous speech, “When liberty dies in the hearts of men, there’s no court, there’s no law, that can save it.” And the story of the 20th century, and we’ve covered this in the podcast extensively, is one of increasing protection for speech led by mostly progressive lawyers and judges. Oliver Wendell Holmes – his famous dissent in Abrams v United States. Louis Brandeis, Aryeh Neier, the executive director of the ACLU during the Skokie case. Ira Glasser, who took over from him.

All these lawyers set the First Amendment where it is today, where it has this expansive protection speech through fights over progressive dissent from World War I, through fights against McCarthy and crackdowns on Communist sympathies, the Civil Rights movement as you write about in “The Forgotten Origins of the Constitution on Campus,” Vietnam. It’s only recently where the pendulum has swung, and progressives are more concerned about the emotional trauma that might be caused by speech and are ceding the ground on the protections for that speech.

Randall Kennedy: I think that that description is largely correct. And fortunately, we’re in the middle of things. We are in a situation where we’re in the middle of things. I think that that can be changed. I think that it will be very important to sound the alarm about the dangers of authoritarianism. Again, you give the state the power to set up this one, that one, and the other one —

Nico Perrino: And the state in this case would be the Trump Administration and, if you’re a progressive, many republican-led state legislatures.

Randall Kennedy: Well, I would say – I have Trump in mind. But frankly, a more general proposition, and we’ve seen it over and over and over. It might look like, you might not be worried about who’s being shut up today because it’s not your folks, but next week is going to come. And we’ve seen it over and over and over again.

Nico Perrino: Wasn’t it Ruth Bader Ginsburg who said, “America, if anything, is a pendulum. When it swings far one way, it always has this tendency to swing back the other?” which I think is a good story of America.

Randall Kennedy: It will. And we’ve seen the case of censorship. I wrote a book a number of years ago, Nigger: The Strange Career of a Troublesome Word, and encountered a lot of difficulty with it. I’d say that probably once a year, I find myself writing a letter to some place in defense of a teacher who has been dismissed for Xeroxing part of my book and giving it out to the class. This happens, fortunately, not a whole lot.

Nico Perrino: They’re not getting disciplined for copyright concerns, I’m assuming. They’re getting disciplined for the title.

Randall Kennedy: No. I’m not complaining. I have never complained. It probably is a copyright infringement, but I love it. The reason I write is for people to read, so I don’t care about that. But my point is, and it’s a real serious point. You’ll have people who – one of the things I mention in that book is that there came a point in Washington D.C. where the authorities there enacted a policy saying that any publication that printed the infamous n-word would be immediately banned from a school. Do you know what was the first publication banned?

Nico Perrino: I’m assuming it was the book by Dick Gregory.

Randall Kennedy: No. Even before then. It was The Crisis Magazine. The magazine for the National Association for the Advancement of Colored People because in one of its editorials, it was talking about the n-word being used as a weapon against Black people. It was just detailing things. That book – of course, Dick Gregory’s book has been banned. James Baldwin has been banned. Toni Morrison has been banned. This is the way that things work, and again, people ought to be attentive to the problem with banning, the problem with prohibition, the problem with silencing. This is the sort of thing that happens, and we need to be attentive to it.

What we should want is a citizenry, a populace, that is educated, that is strong, that can listen to various things, and not be traumatized, not be silenced, not be hurt. We should want to have a set of habits, a set of laws, a set of protocols that inculcate that inner strength so that people can listen to everything and then reach the conclusion that they think best. That is what we should want. And when we take shortcuts, when we allow the authorities to keep things from us, sometimes with the belief that actually they’re saving us or keeping us from hurt. They’re not keeping us from hurt. They might think that they’re keeping us from hurt.

Maybe they authentically think that they’re keeping us from hurt, but actually, they are hurting us. They are preventing us from using the opportunity presented to strengthen ourselves. How can we be strong if we don’t know what’s out in the world? We need to know what’s out in the world. And by the way, I wanna go back to an earlier thing you said. When you go to campuses and when students say, “Gosh, if you allow so-and-so to speak, it’s going to hurt our feelings.” Now again, these are smart students. I sympathize with the students, but what I say to them is, “It’s not easy, actually, to confront the people who you view as your enemies. It’s not as if you are going to be able to effectively confront them without learning how to confront them.”

For instance, some of these people, they are actually very practiced and very good debaters They really are. And you get in front of a crowd; it’s not as if – even if what they’re saying is terrible, debating is itself a skill. You can’t get in front of one of these people, in front of a crowd and think that you’re going to win over the crowd just because your ideas are superior.

No. What you’ve gotta do – you’ve gotta confront them to learn how to confront them. And so, if a school says, “Well, gosh. We’re never going to have one of these people around,” – if you do not develop the skills to confront these people, respond to them – well, that’s a skill that you’re going to lose.

Nico Perrino: Yeah. It’s like a muscle. You’ve gotta exercise it.

Randall Kennedy: This happened in my life. A number of years ago – gosh, it’s been a while now. About 20 years ago, I was on a panel with Dinesh D’Souza. And it was a debate, a debate about affirmative action, actually. It was at Georgetown University Law Center. And we debated, and actually, I did an abysmal job. No, I did. I did an abysmal job. About two weeks later, he was coming up to Harvard, and some group said, “Do you wanna debate Dinesh D’Souza?” And I said, “Oh, yes. I really do,” because I felt so badly about my performance the first time. And I was really angry. I was shouting. I was —

Nico Perrino: Not your best self that day.

Randall Kennedy: I was so angry that it was as if, as if anger was going to do it. It was as if righteousness was going to win. The second time, when he came around again, I was disciplined. I was calm. I poked fun a little bit. And I was so much better. And it was funny because afterwards, I was talking with him, and he knew it, too. He knew it. And what it showed to me was debating is a skill. It’s not as if righteousness is simply going to just jump out of your mouth. You’ve got to get used to talking. You’ve got to get used to they say this – what is a response?

Nico Perrino: I talk about this often. I don’t know if you’re on Facebook, but Facebook debates are pretty common. Someone throws out an argument, and someone has this righteous response to it. And then they engage in this debate. And it happens to me sometimes, and I don’t have a great response to their response, so I spend the next hour researching the issue. And so, when you hear these contrary points of view, it sends you back to the drawing table to investigate your beliefs and to maybe, in some cases, change them because you’ve been confronted with an idea that you hadn’t considered before.

And John Stuart Mill talks about this in On Liberty. He writes, “However unwilling a person who has a strong opinion may admit the possibility that his opinion might be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.” Some of this, I’m sure, have this experience. How often are we having to argue with a Flat Earth Society member, or argue with someone that gravity exists, or that X, Y, or Z that we hold as dead dogma must exist.

I don’t even know how I would go about arguing with a Flat Earth Society member or argue with someone that gravity is a real thing just because I never have to do it. If I had to do it, I would have awesome arguments for it.

Randall Kennedy: Absolutely. And by the way, another thing is – again, I’m very disturbed by ascendant – at least hopefully just momentarily ascendant – tendencies in our national life. But there are millions of people who actually believe some of the ideas that I find abhorrent. Well, okay. I find them abhorrent, but there are millions of people who believe them. Now, some of these people are going to be beyond convincing. Some people are beyond convincing. But there are some people, and an appreciable number, who are not. Again, how does one develop the facility to reach such people? You cannot do it if you don’t do it.

And so frankly, in this time – there may have been a point not so long ago in which we thought that some of these ideas were so outré, so retrograde, that we really didn’t have to debate them because, “Ah. Nobody’s gonna believe that.” Well, frankly, no. Actually, we’ve had a certain kind of comeuppance. Now people do believe it. So, how do we confront that?  How can we persuade people to a different line of thought? Well, the way that you do that is to do it. And the best way to do it is to confront it. And the only way we’re gonna confront it is if we get down into the trenches. We get into the arena, and we test ourselves.

And again, we develop a way of being so that we don’t fall apart and start crying and go to pieces in the face —

Nico Perrino: Of opposition.

Randall Kennedy: Of our ideological adversaries. Again, it’s tough. It is tough to change the world. But to change the world, we’re gonna have to be tough. And to be tough, we’re gonna have to confront our adversaries.

Nico Perrino: Well, Professor Kennedy, I think that’s a beautiful place to leave it. I’d encourage all of our listeners to check out your essay, “The Forgotten Origin of the Constitution on Campus.” Our executive director here at FIRE made it required reading for our entire staff – sent out an email with a link to the article and now it joins the ranks of John Stuart Mill, Jonathan Rauch, John Milton’s Areopagitica as a canonical free speech text here at FIRE. So, I welcome you to those esteemed ranks, and I thank you again for talking with me today. It’s been a pleasure.

Randall Kennedy: Thank you very much for having me, and good luck with your all-important work.