Free Speech is Needed for All Speech

Update below on big error on my part re Tom Palmer.

For fairly obvious reasons, I’ve been thinking a lot about free speech on campuses, whether at government universities or private universities. The issues differ, of course, because private universities are not constrained by the First Amendment or state constitutional rules that require free speech.

For now, I want to consider private universities. Like many people, probably most people who watched, I was appalled by presidents Claudine Gay of Harvard, Liz Magill of Penn, and Sally Kornbluth of MIT when Congresswoman Elise Stefanik asked them fairly straightforward questions and they answered as if they had “lawyered up,” which they actually had. But I had to think through why I was appalled. And I came to a conclusion very much at odds with my initial reaction.

The Misreporting

First, I’ll point out how badly some in the press–print and electronic–have misrepresented what happened. I’ll deal with that briefly before going on to the issue at hand.

Exhibit A of the problem is Jennifer Rubin. In her December 9 Washington Post column, titled “University presidents flunk the humanity test,” she stated:

Freedom of Speech

I won’t bother reporting the other parts of the interaction. The major excerpts are in Valerie Strauss, “How Harvard, Penn, MIT leaders answered–or skirted–questions on antisemitism,” Washington Post, December 6.

Here’s the problem. While you might get the impression that these 3 presidents believe that anything goes in speech as long as it doesn’t escalate to action, that seems to be false. I don’t know the MIT or Penn stories as well, but I have been following Harvard for some time. The Foundation for Individual Rights and Expression (FIRE), which began as the Foundation for Individual Rights in Education, and to which I have donated annually for almost 20 years, tracks respect for freedom of speech on campus. In its latest rankings, Harvard is #248 out of 248 universities and colleges that FIRE ranks. Not good.

I want to caution, though, that the FIRE site gives some bottom-line data without telling us enough to judge the data. For instance, one component of the ranking is whether students feel comfortable expressing unpopular views. That’s a bit of a squishy criterion. When I’m around some of my friends who are less concerned than I am about innocent people being killed in Gaza, I sometimes hold back. Part of it is that I don’t want to sound like a broken record; part of it is that, because of past reactions I’ve gotten, I don’t always feel “comfortable” expressing that view. But are my potential listeners hurting my freedom of speech? Hardly. What I would want to know is what happens if the students do express their views. Do people chant at them, follow them around campus, make threats? Even the chanting is simply freedom of speech unless it’s a mob chanting and chasing after the person being disagreed with. So I need to know more. But following them around campus and making threats is action and, depending on how far the stalking goes or the threats go, could be grounds for expulsion. If I had been Stefanik, I would asked questions about that.

FIRE does give some objective data. If you go to their background on Harvard, you see the categories “Student Sanctions,” “Scholar Sanctions,” and “Speaker Disinvitations.” If you click on those items, you see the explanation that this datum is the number of times the particular thing happened in a 4-year period from 2019 to 2023. My prior had been that there were many such things. It turns out, though, that the number of student sanctions was 1.0, the number of scholar sanctions was 4.0, and the number of speaker invitations was 2.0. All of these are bad. How many such actions does it take for Harvard’s administration to communicate to students and faculty that certain views and certain speakers will not be tolerated? Probably not many. Still, what struck me was how few incidents FIRE found in each of those categories.

I thought that I had heard of many such incidents, so I googled to find them. I didn’t find much. Of course, Harvard, with its deep pocket, can hire people to go on the web and make it hard to those incidents to show up. I did find one thing that’s close and one that seems like a clearcut retaliation against two faculty members.

The one that’s close is a 2017 story by Hannah Natanson from the Harvard Crimson, the student newspaper, titled “Harvard Rescinds Acceptances for At Least Ten Students for Obscene Memes.” Natanson writes:

Harvard College rescinded admissions offers to at least ten prospective members of the Class of 2021 after the students traded sexually explicit memes and messages that sometimes targeted minority groups in a private Facebook group chat.

Judging whether that crosses the line into a restriction of freedom of speech is complicated. On the one hand, the Harvard administrators are communicating what they will tolerate, and their tolerance is low. On the other hand, the “students” were not yet Harvard students. I would want to see the contractual commitment that Harvard had made in initially accepting these students. My guess is that Harvard’s lawyers were smart enough to set it up so that Harvard did not breach a contract.

The clearcut retaliation was in 2019, with Harvard’s announcement that it would not renew faculty members Ronald S. Sullivan Jr. and Stephanie Robinson as faculty deans of Winthrop House. That followed a number of student protests. The students objected to Ronald Sullivan’s decision to be one of the lawyers defending Harvey Weinstein. It seems clear from context that the Harvard administrators objected to his decision to exercise his freedom of speech in defending Weinstein.

None of this is good. It’s just less bad than I had expected.

Russ Roberts, Niall Ferguson, and Tom Palmer

In his latest EconTalk episode, an interview with the Hoover Institution’s Niall Ferguson, Russ Roberts states:

But, I want to see if you share this insight I heard from Tom Palmer of the Cato Institute and the Atlas Network, which I used to disagree with. This is where I’m a little less of a fundamentalist. He argued that when a group–a group, not an individual–when a group advocates for a movement that would eliminate free speech, that is the Communists. For a Soviet communist marching in the 1970s or 1980s, or a Nazi, say, marching in Skokie or trying to march in Skokie, a Jewish neighborhood, a highly Jewish neighborhood outside of Chicago. Tom argued that if this group does not believe in free speech for others, they should not be able to use the protection of free speech to advocate their agenda. And, I used to disagree with that. That’s where I’m a little more open to restrictions.

I think that’s a very bad idea. How do you get discussion? It’s possible that some people in the group could be persuaded otherwise but, not having the protection of free speech, will shut up. That sounds similar to what FIRE reports about students at Harvard.

There’s another more fundamental problem. I won’t put this on Russ because he seems to be considering the idea rather than advocating it. But I will pose it to Tom Palmer and others who agree with them. The problem is that they have just argued against their own freedom of speech. After all, they advocate eliminating free speech for some subset of people. If I understand their proposal correctly, they should not, therefore, have the protection of free speech. Are they sure they want to undercut their own free speech. I have known Tom Palmer since he was 17. He’s a smart, articulate, and passionate defender of freedom in all its dimensions. He makes his living speaking and writing. Would he want to advocate something, that if followed, would put that living at risk?

Update:

The above about Tom Palmer generated a response from him. Tom says that Russ misremembered something that happened about 25 years ago. When I asked him to explain, he did. Here’s his explanation:

As to what I thought then, whenever that was, and what view I have now, which I doubt changed much, if at all, I would summarize while sitting in an airplane seat dictating to my cell phone as follows.

An expression of opinion is certainly not normally properly restricted by law, but when an opinion is a part of a threat to other people, and that threat is credible and represents the present danger, then people have the right to respond in self-defense. The national socialist party was properly and correctly banned in Germany and other countries after the war. it was a colossal criminal enterprise that murdered millions. There was no obligation to let them re-organize in order to take over again. I would say the same about the communist party at the end of the USSR when Boris Yeltsin tried to disband it, as well.

That is a very different matter from a group of malevolent kooks marching through a town in Illinois , where their presence, hateful and despicable as it was, was not a credible threat to anyone living there.

Burning a cross on your farm as a part of a racist cult event is not normally a credible threat that warrants restricting it by law, unless the KKK is also lynching people or intimidating them with such threats. Black people understand — and feel — well what the KKK would do to them. They didn’t just express repugnant opinions; they killed people. If David Duke can find people to invite him to talk about how he is superior to, say, Thomas Sowell, he has the right to speak and even to express the absurd opinion that Sowell should be Duke’s slave, but wearing a hood and burning crosses to drive Sowell out of his home is not the same.

Threats are generally expressed with speech, but it does not follow that the 1st Amendment or a general policy of liberty of speech protects threats.

Had I more time and something other than my phone on a flight, I might explain my rather common-sense and unremarkable view with more nuance, but it should be clear that I do not believe that people who oppose free speech should be banned from speaking.

I think, by the way, that property rights handle the “burning the cross on your farm” issue. You own the farm. Just as that means that no one has the right to dump garbage on your farm, it also means that no one has the right to burn a cross on your farm.