Free speech on American college campuses has been in a free fall for years. From high schools through law schools, free speech has gone from being considered a right that defines our society to being dismissed as a threat. According to polling, the result is arguably one of the most anti-free-speech generations in our history. The danger is more acute because it has reached law schools where future judges and lawyers may replicate the same intolerance in our legal system.
A recent controversy at Duke Law School highlights this danger. “Law & Contemporary Problems” is a faculty-run journal that recently decided to do a balanced symposium on “Sex and the Law” — including transgender issues — and asked Professor Kathleen Stock of the University of Sussex (who has criticized transgender positions) to participate.
Protests erupted over allowing such intellectual diversity.
The new set of student editors demanded that Stock be removed from the symposium. The faculty board issued a statement explaining the importance of freedom of speech and academic freedom, particularly on a journal that serves as a forum for debates on contemporary issues. Students resigned rather than associate with a journal offering both sides of such issues.
Some legal columnists echoed calls to ban those with opposing views. The legal site “Above The Law” (ATL) published an article denouncing the faculty for supporting free speech. ATL editor Joe Patrice ran a factually inaccurate tirade against Duke for using academic freedom as “a shield for professors to opine and behave in ways that marginalize others.”
The ATL criticism of Duke was illustrative of the new anti-free-speech movement that is now taking hold in law schools and legal publications. Academic freedom and free speech are denounced as tools to “marginalize others.” Patrice sums up why both the student editors and the Duke faculty must be condemned: “A ‘vigorous and open exchange of ideas’ is valuable only to the extent it improves the academic mission of improving the human condition. Is Trans skepticism within that field? It shouldn’t be, but here we are.” In other words, you are entitled to free speech so long as you cannot be accused of “marginalizing” others.
While calling for professors like Stock to be barred from the publication for “marginalizing” others, ATL editors and other writers often stigmatize and denounce whole groups as requiring containment and condemnation. Elie Mystal, who writes for ATL and is The Nation’s justice correspondent, for example, lashed out at “white society” and how he strives to maintain a “whiteness-free” life. On MSNBC, Mystal declared, without any contradiction from the host, that “You don’t communicate to [Trump supporters], you beat them. You do not negotiate with these people, you destroy them.”
In such campaigns, there is little time or patience with trivialities like free speech.
Mystal was celebrated for his declaration: “I have no intention of waiting around for them to try to kill me before I demand protection from their ‘free speech.’ ”
Dangerous thoughts are ill-defined beyond being rejected by these writers. Under this approach, free speech becomes like pornography under the famous test of Supreme Court Justice Potter Stewart: “I shall not today attempt further to define the kinds of material … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”
Of course, free speech demands bright lines so that professors are not chilled in what they write or say. However, that is precisely the point. Whether Patrice and others can block the publication of Stock is immaterial. The fact is that most students and faculty do not want to be the subject of such a public campaign. Academics are notoriously risk-averse. They need conferences and publications to advance their careers.
The threat is to lose everything that academics need to be active intellectuals. This is the one-year anniversary of the move to force a criminology professor named Mike Adams off the faculty of the University of North Carolina (Wilmington). Adams was a conservative faculty member with controversial writings who had to go to court to stop prior efforts to remove him. He then tweeted a condemnation of North Carolina Gov. Roy Cooper (D) for his pandemic rules, tweeting that he had dined with six men at a six-seat table and “felt like a free man who was not living in the slave state of North Carolina” before adding: “Massa Cooper, let my people go.” It was a stupid and offensive tweet. However, we have seen extreme comments on the left — including calls to gas or kill or torture conservatives — be tolerated or even celebrated at universities.
Celebrities, faculty and students demanded that Adams be fired. After weeks of public pummeling, Adams relented and took a settlement to resign. He then killed himself a few days before his final day as a professor.
Law schools have seen repeated disruptions of conservative speakers with the support or acquiescence of faculty. CUNY law school Dean Mary Lu Bilek insisted that law students preventing a conservative law professor from speaking was itself free speech. She also insisted that a law student threatening to set a man’s Israel Defense Forces sweatshirt on fire was simply “expressing her opinion.” Recently Bilek actually canceled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students.
Last year, the acting Northwestern law school dean declared publicly: “I am James Speta and I am a racist.” He was followed by Emily Mullin, executive director of major gifts, who announced: “I am a racist and a gatekeeper of white supremacy. I will work to be better.” Such public declarations can fuel demands for more mandatory demonstrations by others or intolerance for those who dissent. At Rutgers this year, the student government ordered all groups to hold critical race theory and diversity programs as a condition for receiving funds. At the University of North Carolina, student Sagar Sharma, who is a student of color, faced a recall election as the first-year class co-president for simply stating that he did not consider an argument between two fellow students to be racist.
Faculty and editors are now actively supporting modern versions of book-burning with blacklists and bans for those with opposing political views. Columbia Journalism School Dean Steve Coll has denounced the “weaponization” of free speech, which appears to be the use of free speech by those on the right. So the dean of one of the premier journalism schools now supports censorship.
Free speech advocates are facing a generational shift that is now being reflected in our law schools, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that China is “right” about censorship, these figures are shaping a new society in their own intolerant images.
For now, the Duke symposium will include the offending article — but the resignations and condemnations show why this small degree of diversity in viewpoint is increasingly rare on our campuses.
This is a single (and close) victory for free speech, but make no mistake about it: We are losing the war.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.